Javorsky v Commissioner of Taxation

Income Tax Assessment Act 1936 (Cth) Taxation Administration Act 1953 (Cth) LEGISLATION CITED : Corporations Act 2001 (Cth) Supreme Court Rules 1970 (NSW)

Hutchins v Federal Commissioner of Taxation (1986) 86 ATC 4549 Federal Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257 Canadian Pacific Tobacco Co. Ltd v Stapleton (1952) 86 CLR 1 Donnelly v Davison (2000) 105 FCR 1 Re Fortex Pty Ltd (1986) 86 ATC 4351 Re Confitt Constructions Pty Ltd (In Liq) [1999] 2 Qd R 490 CASES CITED : Purnell Bros Pty Ltd v Transport Engineers Pty Ltd (1984) 73 FLR 160 Deputy Commissioner of Taxation v Nika Management Service Pty Ltd (6/12/95, SCNSW Unreported) R v Clarkson & Ors (No. 2) [1982] VR 522 Glasson v Parkes Rural Distributors Pty Ltd (1984) 155 CLR 234 Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 77 ALJR 1263; 198 ALR 179 Griffith University v Tang [2005] HCA 7

Thomas Javorsky in his capacity as Liquidator of PLM Formwork Pty Limited (in liquidation) & Anor PARTIES : v Commissioner of Taxation

Plaintiff: P Fury COUNSEL : Defendant: M Aldridge SC & P Rodionoff

Plaintiff: Cutler Hughes & Harris SOLICITORS : Defendant: Australian Taxation Solicitors

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

1102/03 THOMAS JAVORSKY IN HIS CAPACITY AS LIQUIDATOR OF PLM FORMWORK PTY LIMITED (IN LIQUIDATION) & Anor v COMMISSIONER OF TAXATION JUDGMENT 1 HIS HONOUR: This is an application that the defendant, the Commissioner of Taxation, give discovery of various categories of documents, which are claimed to be relevant to the plaintiffs' claim. The Commissioner's primary objection is based on secrecy provisions in the Income Tax Assessment Act 1936 (Cth) and the Taxation Administration Act 1953 (Cth). Background 2 On 23 July 1999, two companies called Mindgrove NSW Pty Ltd and Mindgrove Pty Ltd, together with four individuals, Mr and Ms Milazzo and Mr and Ms Cappadona, entered into a deed called a "Deed of Acknowledgement/Guarantee". The other party to the deed was described as "the Commonwealth of Australia acting through the Australian Taxation Office". Under the deed, the two companies and four individuals (called "the debtors") were required jointly and separately to pay a debt of $3,229,368, described as amounts owed by them in respect of their failure to deduct and pay tax instalment deductions, prescribed payments, income tax, additional tax and interest. They agreed to pay the debt in instalments. The instalments included monthly instalments of $50,000, payable on the 30th day of every month after 31 July 1999 (or in the case of February, the 28th day of that month), up to and including 30 May 2003. 3 The second plaintiff is a company called PLM Formwork Pty Ltd. It is in the course of being wound up. The first plaintiff is its liquidator. The plaintiffs allege, and the defendant now admits, that between 30 November 2000 and 31 July 2001, the second plaintiff ("PLM Formwork") paid seven instalments of $50,000. 4 The liquidator alleges that PLM Formwork was insolvent when the payments were made and was in default of its own taxation obligations at that time. He alleges that the payments are voidable transactions under ss 588FE(1) and 588FE(3) of the Corporations Act 2001, being insolvent and uncommercial transactions. 5 The defendant pleads a defence under s 588FG(2) of the Corporations Act. 6 The documents of which the plaintiff seeks discovery can broadly be summarised as follows:

(a) documents brought into existence between 1 January and 23 July 1999, evidencing the taxation obligations of the debtors;

(b) documents in the same period, evidencing negotiations between the debtors and the defendant in relation to the making of the deed and the payment by instalments of the debt in respect of which the deed was entered into;

(c) any amendments to the deed or collateral arrangements relating to payments due under it;

(d) documents evidencing the payments made under the deed and the identity of the payers; and

(e) communications between the debtors and the defendant between the date of the deed and 31 July 2001, in relation to the making of payments by the debtors or PLM Formwork, or the failure of the debtors to comply with the deed, or any late payments or default in payments due under the deed, or any threat by the defendant to enforce the deed, or any forbearance by him from taking steps to enforce it. 7 The defendant says that many of the documents sought are not relevant to the present issues. In any event, he submits that pursuant to s 16 of the Income Tax Assessment Act 1936 (Cth) and s 3C of the Taxation Administration Act 1953 (Cth), he is neither permitted, nor can he be required, to divulge the requested information. The Relevant Provisions 8 Subsections 16(2), (2A) and (3) of the Income Tax Assessment Act 1936, provide as follows: " 16. Officers to observe secrecy … (2) Subject to this section, an officer shall not either directly or indirectly, either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any information respecting the affairs of another person acquired by the officer as mentioned in the definition of "officer" in subsection (1).

(2A) Subsection (2) does not apply to the extent that the person makes the record of the information, or divulges or communicates the information, in the performance of the person's duties as an officer.

(3) An officer shall not be required to produce in Court any return, assessment or notice of assessment, or to divulge or communicate to any Court any matter or thing coming under his notice in the performance of his duties as an officer, except when it is necessary to do so for the purpose of carrying into effect the provisions of this Act or of any previous law of the Commonwealth relating to Income Tax." 9 "Officer" is defined in subs 16(1) as meaning: " (1) In this section, unless the contrary intention appears:

"officer" means a person who is or has been appointed or employed by the Commonwealth or by a State, and who by reason of that appointment or employment, or in the course of that employment, may acquire or has acquired information respecting the affairs of any other person, disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax." 10 There are additional exceptions to the prohibition in s 16(2), but none is relevant to the present case. 11 The scheme of these provisions is that s 16(2) prohibits the recording or disclosure of certain information. Subsection 16(2A) contains an exception to that prohibition. Subsection 16(3) confers a freedom on an officer against being required to produce or disclose certain information to a Court. But that freedom from compulsion is not available if the exception in s 16(3) applies. 12 Subsection 3C of the Taxation Administration Act provides for a similar scheme, but is not in identical terms. 13 Subsections 3C(2), (2A), and (3) provide: "3C. Secrecy

(2) Subject to subsection (4), a person who is or has been an officer shall not directly or indirectly:

(a) make a record of any information with respect to the affairs of a second person; or

(b) divulge or communicate to a second person any information with respect to the affairs of a third person;

being information disclosed or obtained under or for the purposes of this Act and acquired by the person by reason of the person's appointment or employment by the Commonwealth or in the course of such employment, or by reason of the delegation to the person of powers or functions by the Commissioner, or in the course of the exercise of such powers or the performance of such functions, as the case may be.

Penalty: 10,000 or imprisonment for 2 years, or both.

(2A) Subsection (2) does not apply to the extent that the person makes a record of the information, or divulges or communicates the information:

(a) for the purposes of this Act; or (b) in the performance of the person's duties as an officer; or (c) for the purposes of complying with an obligation Australia has under an agreement between Australia and another country.

(3) Except when it is necessary to do so for the purpose of carrying into effect the provisions of a taxation law, a person who is or has been an officer shall not be required:

(a) to produce in court any document made or given under or for the purposes of this Act; or

(b) to divulge or communicate to a court a matter or thing with respect to information disclosed or obtained under or for the purposes of this Act;

being a document or information acquired by the person by reason of the person's appointment or employment by the Commonwealth or in the course of such employment, or by reason of the delegation to the person of powers or functions by the Commissioner, or in the course of the exercise of such powers or the performance of such functions, as the case may be." 14 "Officer" is defined in s 3C(1) as meaning: "3C. Secrecy

(1) ….. a person: (a) who is or has been appointed or employed by the Commonwealth; or

(b) to whom powers or functions have been delegated by the Commissioner;

and who, by reason of the appointment or employment or in the course of the employment, or by reason of, or in the course of the exercise of powers or the performance of functions under, the delegation, as the case may be, may acquire or has acquired information with respect to the affairs of any other person disclosed or obtained under or for the purposes of this Act."

The Issues 15 I will address the issues which arise under these sections in the following order:

(a) whether the prohibitions in s 16(2) of the Income Tax Assessment Act and s 3C(2) of the Taxation Administration Act against the disclosure of information apply, apart from the exception to those subsections;

(b) if they do, whether the exceptions in s 16(2A) and s 3C(2A) to the prohibition against disclosure apply;

(c) whether the freedom from compulsion to produce documents or disclose information is unavailable to the Commissioner because of the exceptions in s 16(3) and s 3C(3); and

(d) if not, whether the freedom from compulsion in either s 16(3) or s 3C(3) is or may be available to the Commissioner.

Subsections 16(2) and 3C(2) 16 The prohibition against disclosure in s 16(2) and s 3C(2) is only against disclosure to "any person", in the case of s 16(2), or to a "second person", in the case of s 3C(2). 17 That prohibition does not apply to the divulging or communicating of information to a court. (Hutchins v Federal Commissioner of Taxation (1986) 86 ATC 4549 at 4553; Federal Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257 at 262). 18 However, an order for discovery pursuant to Part 23 rule 3 of the Supreme Court Rules requires the provision of a list of documents to the opposite party, and the making available for inspection by the opposite party of the documents which are so listed and which are in the possession, custody or power of the party making the list, which are not privileged. Therefore, the fact that disclosure to a court is not within the prohibition does not mean that compliance with an order for discovery would not involve disclosure of information to a person contrary to the subsections. 19 It does not necessarily follow that the defendant is prohibited by s 16(2) or s 3C(2) from making a list of documents and making the documents available for inspection to the opposite party, irrespective of the exception in s 16(2A) or s 3C(2A). The scope of the prohibition in s 16(2) depends, in my view, on whether the information divulged or communicated was information disclosed or obtained under a provision of the Income Tax Assessment Act. This follows from the definition of "officer". In the case of s 3C(2), the prohibition is against the disclosure of information with respect to the affairs of a third person, which was disclosed or obtained under or for the purposes of that Act. Similar questions arise in relation to the scope of s 16(3) and s 3C(3) and are addressed in more detail later in these reasons. Subsections 16(2A) and 3C(2A) 20 Irrespective of the scope of the prohibitions in s 16(2) and s 3C(2), the exception to that prohibition is satisfied. 21 In Canadian Pacific Tobacco Co. Ltd v Stapleton (1952) 86 CLR 1, Dixon CJ considered the scope of s 16(2). At that time, s 16(2) included the exception which is now found in s 16(2A). It then provided: "An officer shall not either directly or indirectly, except in the performance of any duty as an officer and either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any such information so acquired by him." 22 Dixon CJ said that the words in the exception should be given a wide interpretation. His Honour said (at 6-7): "The exception governs all that is incidental to the carrying out of what is commonly called 'the duties of an officer's employment'; that is to say, the functions and proper actions which his employment authorises." 23 If the defendant were required to produce documents by an order of the Court for discovery, the obedience to such an order would readily fall within the concept of the performance of the defendant's duties as an officer. (Federal Commissioner of Taxation v Nestle Australia Ltd at 262; Donnelly v Davison (2000) 105 FCR 1 at 8). 24 Again, I think there is a question of whether the scope of the exception in s 16(2A) is limited by the definition of "officer". However, if complying with an order for discovery was otherwise prohibited by s 16(2), or s 3C(2), the exceptions in s 16(2A) and s 3C(2A) would clearly be engaged. 25 Accordingly, the Commissioner is not prevented from complying with an order for discovery. Can he claim that he cannot be compelled to give the discovery sought? The plaintiffs' first submission was that the Commissioner cannot do so, because the exceptions in s 16(3) and s 3C(3) are applicable. The Exception to s 16(3) and s 3C(3) 26 In Re Fortex Pty Ltd (1986) 86 ATC 4351 at 5358 Enderby J held that not only does s 16(2) not prevent a divulging or communication by a taxation officer by the production of documents under compulsory process where the Court requires that to be done, but s 16(3) does not operate to prevent such production to the Court. However, with respect, no satisfactory reason is given for such a wide view of the exception to s 16(3) of the Income Tax Assessment Act. 27 The plaintiff principally relied upon the decision of Williams J in Re Confitt Constructions Pty Ltd (In Liq) [1999] 2 Qd R 490 at 494. That case concerned an order for the public examination of persons in the course of the winding up of Confitt Constructions Pty Ltd. The Deputy Commissioner of Taxation and another taxation officer were required to attend to answer questions and produce documents. The liquidator was investigating whether payments made to the Commissioner could be recovered as a voidable preference. Williams J said (at 494, [16]) that if proceedings were commenced by the liquidator to recover the payments made to the Commissioner as a voidable preference, then the Commissioner and his Officers would "clearly be carrying into effect the provisions of the Income Tax Assessment Act by defending the claim". However his Honour did not identify any provision of the Income Tax Assessment Act which the Commissioner would be carrying into effect by defending the claim. None was identified before me. 28 His Honour went on to say that the position should be no different where an examination was being conducted, and concluded that the divulging of information in the course of a liquidator's examination would not constitute a breach of s 16(3), because what was being done would be necessary for the purpose of carrying into effect the provisions of the Income Tax Assessment Act. 29 In my view, the exception in s 16(3) of the Income Tax Assessment Act and in s 3C(3) of the Taxation Administration Act is narrower. The communication of information, or the production of the specified documents to the Court, must be necessary for the purpose of carrying into effect the provisions of a taxation law. That requirement directs attention to the provisions of the taxation law to which effect will be given by the communication of information to the Court or the production of the specified documents. 30 In Federal Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257 at 262, the Full Court of the Federal Court described the scope of the exception in s 16(3) as follows: "The exception covers the production of documents by an officer to courts or his giving evidence in proceedings before them for recovery of tax ( Norper Investments Pty Ltd v Deputy Federal Commissioner of Taxation (1977) 77 ATC 4211); appeals to Supreme Courts against the disallowance of objections to assessments ( Re Fortex Pty Ltd ; appeals under the Taxation (Unpaid Company Tax) Assessment Act 1982 (Cth) ( Hutchins v Federal Commissioner of Taxation ; appeals to this Court from judgments of Supreme Courts on taxation appeals both at first instance and from decisions of boards of review; appeals to this Court from decisions of the Administrative Appeals Tribunal in tax matters which has recently subsumed the jurisdiction formerly exercised by boards of review; and proceedings pursuant to s 39B of the Judiciary Act 1993 or the Judicial Review Act involving challenges to decisions of officers of the Taxation Office of the kind mentioned earlier. Other proceedings in addition to these may be within the scope of the exception; but the principal ones seem to be those just mentioned." 31 In defending these proceedings, the Commissioner is not seeking to carry into effect a provision of a taxation law. He is seeking to resist a claim made by the liquidator under the Corporations Act to avoid a payment made to him. This view of the exception to s 16(3) of the Income Tax Assessment Act is consistent with the decisions of Powell J in Purnell Bros Pty Ltd v Transport Engineers Pty Ltd (1984) 73 FLR 160 and of Cohen J in Deputy Commissioner of Taxation v Nika Management Service Pty Ltd (6/12/95, SCNSW Unreported). In Donnelly v Davison (2000) 105 FCR 1, Branson J, after referring to these decisions, said (at 7-8): "The terms of s 16(3) of the ITA Act themselves suggest that information and documents can come to the notice of an officer 'in the performance of his duties as an officer' which it will not be necessary for him or her to disclose for the purposes of carrying into effect the provisions of this Act or of any previous law of the Commonwealth relating to Income Tax'. In my view the language of s16(3), seen in the context of Pt II of the ITA Act , discloses an intention that the circumstances in which an officer may be compelled in Court to disclose information or to produce documents should be limited to purposes directly arising out of the provisions of the ITA Act or earlier income tax legislation. This seems to me to be the approach to the subsection which the Full Court adopted in Commissioner of Taxation (Cth) v Nestle Australia Ltd . It is also the approach to the subsection adopted by Powell J in Purnell Bros Pty Ltd v Transport Engineers Pty Ltd ." 32 In each of the cases described by the Full Court in Federal Commissioner of Taxation v Nestle Australia Ltd, the disclosure of information by a taxation officer was necessary for the purpose of carrying into effect a provision of the Income Tax Assessment Act. The cases involved the liability of a taxpayer to taxation and the lawful collection of tax. In the present case, the issue is whether the defendant should be required to repay moneys by reason of provisions of the Corporations Act which are designed to achieve fairness between creditors. In producing documents or information under a discovery order, the defendant would not be carrying into effect the provisions of the Income Tax Assessment Act or of a taxation law. That is so even though in entering into the deed to accept payments of taxation by instalments, the Commissioner presumably was acting under s 206 of the Income Tax Assessment Act, under which he could permit taxpayers to make payments by instalments. 33 For these reasons, I accept the submission of the Commissioner that the exception to s 16(3) of the Income Tax Assessment Act and to s 3C(3) of the Taxation Administration Act does not apply. Scope of s 16(3) and s 3C(3) 34 The question remains, however, whether those sections cover the giving of discovery of the documents sought. 35 The plaintiffs submitted that for the Court to order discovery of the documents was not to require an officer to produce documents in the Court or to divulge or communicate any matter or thing to the Court. It was submitted that pursuant to Part 23 rule 3 an order for discovery requires a list of documents to be furnished to the opposite party, and for the documents which were in the possession, custody or power of the party giving the list to be produced for inspection by the opposite party. The plaintiffs submitted that an order under Part 23 rule 3 would not require any document to be produced in the Court or to be divulged or communicated to the Court. 36 Counsel for the plaintiffs referred to the judgment of Wilcox J at first instance in Nestle Australia Ltd v Commissioner of Taxation (Cth) (1986) 11 FCR 453, where his Honour (at 457) said that: "Section 16(3) of the Act refers to production of documents in court. Documents produced for inspection pursuant to an order for discovery are not produced in court, so that the provision appears to have no application to the present case." 37 His Honour also held that, in any event, the exception to s 16(3) was applicable as the documents were required for the purpose of carrying into effect the provisions of the Income Tax Assessment Act. The appeal from his Honour's judgment was dismissed on the ground that the exception applied. The Full Court did not address the first ground of Wilcox J's decision. 38 In my view, if an order for discovery were made under Part 23 rule 3 of the Supreme Court Rules, the Commissioner would be subjected to an obligation to produce documents to the Court and to divulge and communicate the information in them to the Court. Part 18 rule 4(3) provides that where a list of documents is served, the opposite party on whom the list is served is deemed to have given a notice to produce, requiring production at the trial of such of the documents specified in the list as are in the custody, possession or control of the party serving the list. Thus the party serving the list of documents is required to produce the documents in its custody, possession or control at the trial. Although the production of documents in the Court, and the divulgence or communication of the documents to the Court, will be delayed until the trial, such an obligation would still be imposed by the making of an order for discovery. I therefore reject the first ground upon which the plaintiffs contended that s 16(3) and s 3C(3) were inapplicable. 39 The next grounds are more substantial. At this point, it is necessary to consider s 16(3) and s 3C(3) separately. 40 Section 16(3) deals expressly with the production in court of a specified class of documents: viz., returns, assessments and notices of assessment. This is the first limb of the subsection. The second limb deals with divulging or communicating matters or things coming under an officer's notice in the performance of his duties as an officer. The plaintiffs submitted that the second limb did not deal with the production of documents in court as that was covered by the first limb and was restricted to a narrow class of documents. If the second limb also covered the production of documents, the first would be otiose. Rather, it was submitted, the second limb was addressed to matters such as an officer being compelled to attend on subpoena to give evidence, or being summoned for examination, or being required to answer interrogatories. Each limb, it was submitted, had its separate sphere of operation. 41 This is a powerful argument. Nonetheless, I do not accept it. A document and the information contained in it are clearly capable of falling within the expression "any matter or thing" in s 16(3). The fact that a narrow class of documents is expressly dealt with does not, in my view, mean that all other classes of documents are impliedly excluded from the wider notion of divulging or communicating any matter or thing. In R v Clarkson & Ors (No. 2) [1982] VR 522, O'Bryan J upheld a submission that in choosing the words "matter or thing" the legislature had deliberately used words of wide import. His Honour held that documents would clearly be included in the expression (at 527). I agree with this part of his Honour's reasons. 42 However, I do not consider that the second limb, that is the freedom from being required to divulge or communicate to any court any matter or thing coming under the officer's notice in the performance of his duties, has as wide an application as the Commissioner contended it had, or as it was held to have in R v Clarkson & Ors (No 2). 43 Unless the contrary intention appears, the word "officer" is used in its defined sense. The contrary intention does not appear in s 16(3). The freedom from being required to disclose matters coming under an officer's notice in the performance of his duties as an officer is confined by the definition of "officer". Not everything coming to the notice of an employee in the taxation department in the performance of his duties, is exempt from compulsory disclosure. "Officer" in s 16 does not mean a person employed in the taxation department. It refers only to a person who, by reason of his employment or in the course of his employment, may acquire, or has acquired, information respecting the affairs of another person, which was disclosed or obtained under the provisions of the Income Tax Assessment Act. (I leave aside any previous Commonwealth law relating to income tax). 44 When the definition of "officer" is read into s 16(3), the subsection provides in substance: A person who, by reason of his employment, or in the course thereof, may acquire or has acquired information respecting the affairs of any person, disclosed or obtained under the provisions of this Act, shall not be required to divulge or communicate to any Court any matter or thing coming under his notice in the performance of his duties as a person who by reason of his employment, or in the course thereof, may acquire or has acquired information respecting the affairs of any person, disclosed or obtained under the provisions of this Act. 45 By reading the definition of "officer" into s 16(3), it can readily be seen that the freedom from compulsory disclosure is in respect of information that the person has acquired, or may acquire, which has been, or may be, disclosed or obtained under the provisions of the Act. It is not a freedom from disclosure of any information that a taxation officer, using the word in a general rather than the defined sense, may have obtained in the course of his duties, or for the purposes of the Act. Information must have been disclosed or obtained "under the provisions of this Act". That directs attention to the provision of the Income Tax Assessment Act which expressly or impliedly required or authorised the disclosure or the obtaining of the information. (Glasson v Parkes Rural Distributors Pty Ltd (1984) 155 CLR 234 at 241; Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 295-296, 301-302, 307; NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 77 ALJR 1263; 198 ALR 179 at [54], [55]; Griffith University v Tang [2005] HCA 7 at [78], [89]). 46 Such a construction of the second limb of s 16(3) explains why only a narrow class of documents is expressly provided for in the first limb of the subsection. Returns, assessments and notices of assessments are all documents which the Act authorises or requires to be furnished or prepared. 47 This is a narrower interpretation of the subsection than was given to it in R v Clarkson & Ors (No. 2). There, a subpoena was issued to the Deputy Commissioner of Taxation for demands, summonses and notices issued to taxpayers for the submission of income tax returns and for the payment of income tax. Such demands did not fall within the first limb of s 16(3). O'Bryan J held that they fell within the second limb on the basis that the documents clearly fell within the words "matter or thing" which would be disclosed or communicated to the Court by their production on subpoena. His Honour held that as such disclosure or communication would not be necessary for the purpose of carrying into effect the provisions of the Income Tax Assessment Act, the exception to s 16(3) did not apply (at 527-528). His Honour said (at 528): "Having decided that the expression "matter or thing" comprehends documents, I consider I should give full effect to the plain meaning of the section. …… Unfortunately, I consider the legislature has used plain language, and the obvious intention of the legislature is to observe secrecy in relation to any matter or thing coming under the notice of an officer of the Income Tax Department in performance of his duties." 48 His Honour's judgment was given in the course of a long criminal trial where his Honour expressed regret (at 525-526) that the pressures of time had not permitted a fuller consideration of the arguments of counsel. His Honour did not consider whether the definition of "officer" gave the subsection a more limited scope than that which it would have if it were undefined, and a reference to the performance of the officer's duties were to the performance of any duty as an officer of the Income Tax Department. 49 The Commissioner has not sought to demonstrate that the production of any documents, other than those in the first category of which discovery is sought, would disclose information which has been obtained by the Commissioner pursuant to the exercise of authority conferred by any provision of the Act, or disclosed by a taxpayer pursuant to any requirement of the Act. 50 Section 3C(3) of the Taxation Administration Act does not pose the same difficulties of interpretation. The definition of "officer" follows that in s 16(1) of the Income Tax Assessment Act, except that it refers to a person who may or has acquired information with respect to the affairs of another person which has been disclosed or obtained under the Taxation Administration Act, or for the purposes of that Act. Likewise, s 3C(3) provides that an officer is not required to produce in court any document made or given under or for the purposes of the Taxation Administration Act. Many documents will be made or given, and information will be acquired, for the purposes of the Taxation Administration Act, which would not have been made or given or acquired under the Act. The expression "for the purposes of" substantially widens the scope of the provision. 51 However, the Commissioner must still show that a document required to be produced was one made or given under or for the purposes of the Taxation Administration Act. The documents of which discovery is sought cover the period from 1 January 1999 to date. The general interest charged on unpaid taxes was levied under s 8AAD of the Taxation Administration Act 1953 from 1 July 1999. The provisions relating to the collection of tax, including making arrangements for the payment of tax by instalments, were transferred to the Taxation Administration Act with effect from 1 July 2000. The instalments paid by PLM Formwork Pty Ltd were made from 30 November 2000 to 31 July 2001. It does not follow that if the Commissioner has documents relevant to its defence under s 588FG(2) of the Corporations Act, which were made at or about the time payments were received from PLM Formwork Pty Ltd, that such documents were necessarily made or given for the purposes of the Taxation Administration Act. If there had been no amendment to the deed of 23 July 1999, the collection of instalments under the deed would not, in my view, have involved the performance of functions under the Taxation Administration Act. If the Commissioner were collecting payments under an arrangement made pursuant to the Income Tax Assessment Act 1936, he would be performing his function of administering that Act, pursuant to s 8 of that Act. 52 It follows that the Commissioner has not established that he should not be required to give discovery of the documents sought except any returns, assessments or notices of assessment of the debtors, or documents containing information disclosed or obtained under the provisions of the Income Tax Assessment Act, or documents given or made under or for the purposes of the Taxation Administration Act. However, it is not possible on the evidence to say what such documents might be. For example if, after 30 June 2000, an agreement was made with the debtors to vary the deed relating to the payment of tax by instalments, documents recording or referring to such a variation would be documents made for the purposes of the Taxation Administration Act and the Commissioner could not be compelled to produce them. Documents recording attempts to recover the instalments payable under the deed so varied would probably also be made for the purposes of the Taxation Administration Act. However, if the deed was not varied, documents which recorded communications between the Commissioner or his staff and the debtors in relation to the payment of instalments due under the deed, could be required to be discovered, as they would be made for the purposes of the Income Tax Assessment Act, but would not contain information obtained or disclosed under that Act. Conclusion 53 There was considerable debate before me as to the relevance of each category of document. I am not persuaded that discovery is required of the first category of documents which is sought. Whatever the taxation obligations of the debtors were, that does not seem to me to be material. However, the other categories of documents might contain documents which are material to the issues raised by s 588FG(2) of the defence. After discussion with counsel, both parties agreed that, if discovery were to be ordered, it would be appropriate to order discovery of documents, not by specifying a description of their subject matter, but by specifying their relevance to a fact in issue. (See Part 23 rule 3(3)(a)). The issue to which the plaintiffs are entitled to discovery is the issue raised by the Commissioner in his defence that he is entitled to the benefit of the defence provided for in s 588FG(2) of the Corporations Act 2001. That is the only issue in respect of which discovery is needed. 54 I do not consider that to require the Commissioner to identify a document which he contends he is not required to produce and to specify the ground for that contention, would itself be contrary to either s 16(3) of the Income Tax Assessment Act 1936 or to s 3C(3) of the Taxation Administration Act 1953. The Commissioner should be able to specify why he is not required to produce an identified document, without thereby divulging or communicating the information in it. 55 In my view, the proper course is to order that the defendant give discovery of the documents relevant to the issue raised in paragraph 25 of his defence, without prejudice to the defendant's right to claim that he is not required to give discovery of particular documents by reason of either s 16(3) of the Income Tax Assessment Act 1936 or s 3C(3) of the Taxation Administration Act 1953. If the defendant objects to giving discovery of any particular documents pursuant to either of those sections, the document should be identified separately in the list of documents, and in his affidavit of discovery, the defendant should specify the grounds upon which he contends that he is not required to make available the documents for inspection, or for production to the Court. The facts relied on for such a claim should be delineated sufficiently clearly, so that the Court and the plaintiffs can see the basis for the contention. It would not be sufficient merely to repeat the terms of the sections. 56 I so order. 57 The plaintiffs have had substantial, but not entire, success in the application. My prima facie view is that the costs of the interlocutory process should be the plaintiffs' costs in the proceedings. I have not heard argument on costs. I make that order, but direct it not be entered within 14 days, or until further order if within that period application is made to my associate to re-list the proceedings to make submissions on costs. If either of the parties contends that a different order as to costs should be made, he should notify my associate within 14 days and I will re-list the proceedings to hear such submissions. If no such notification is given within 14 days, the order that the costs of the interlocutory process be the plaintiffs' costs in the proceedings will stand.

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