12 Years Juice Foods Australia Pty Ltd & Others and Commissioner of Taxation (Freedom of information)
[2017] AATA 1091
•14 July 2017
12 Years Juice Foods Australia Pty Ltd & Others and Commissioner of Taxation (Freedom of information) [2017] AATA 1091 (14 July 2017)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s):2017/2658; 2017/2663; 2017/2667; 2017/2670-2
Re:12 Years Juice Foods Australia Pty Ltd & Others
APPLICANT
AndCommissioner of Taxation
RESPONDENT
DECISION
Tribunal:Deputy President Bernard J McCabe
Deputy President B. W. Rayment
Date:14 July 2017
Place:Sydney
1. The application for a stay of proceeding numbers 2017/2658, 2017/2663, 2017/2667 and 2017/2670-2, pursuant to section 33(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), be refused.
2. This matter be listed for a Directions Hearing by telephone at a date to be set.
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Deputy President Bernard J McCabe
CATCHWORDS
PRACTICE AND PROCEDURE – application for stay – application for review of decision to refuse access to certain documents sought under freedom of information – where some such documents also sought under subpoena in Federal Court proceedings – where decision to set aside subpoena is subject to application for leave to appeal - considerations relevant to determining application for stay – stay application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A & 33(1)(a)
Freedom of Information Act 1982 (Cth), ss 38, 42, 47E & 54W (b)
Taxation Administration Act 1953 (Cth), Schedule 1 – ss 355-25, 355-50 & 355-75
CASES
Binqld Finances Pty Ltd (In Liq) v Tamarama Fresh Juices Australia Pty Ltd; In the Matter of Binqld Finances Pty Ltd (In Liq) [2017] FCA 358
REASONS FOR DECISION
Deputy President Bernard J McCabe
Deputy President B. W. Rayment
14 July 2017
On the hearing of these six related applications for review of decisions made under the Freedom of Information Act 1982 (Cth) (‘FOI Act’) by the Commissioner of Taxation in July 2016 and revised by the Commissioner in January 2017, a prominent issue arising will be whether the documents in question are exempt from production under s 38 of that Act on the basis that disclosure of the documents would be prohibited under s 355-25 of Schedule 1 to the Taxation Administration Act 1953 (Cth) (‘TAA’), and if so whether the exception in s 355-50 of Schedule 1 is available to be relied upon by the applicants.
The sole or main purpose for which the applicants desire to obtain access to the documents is that they wish to consider whether to deploy them in their pending application for a permanent stay of proceedings brought against them in Federal Court proceedings NSD 1600 of 2015 in which they have been sued by Binqld Finances Pty Ltd (ACN) 119 243 220) (In Liquidation) and others. Those proceedings and the application for a permanent stay of them are explained in a judgment of Foster J of 5 April 2017: Binqld Finances Pty Ltd (In Liq) v Tamarama Fresh Juices Australia Pty Limited; In the Matter of Binqld Finances Pty Ltd (In Liq) [2017] FCA 358. The orders made at the conclusion of that judgment resolved an application made by the Commissioner to set aside a subpoena issued by the present applicants and others, also designed by the applicants in order to obtain access to documents to consider whether they should be deployed by them in the application for a permanent stay of proceedings NSD 1600 of 2015. The Commissioner’s application to set aside the subpoena was founded upon s 355-75 of Schedule 1 to the TAA. Foster J dismissed the application. The Commissioner has sought leave to appeal from the decision of Foster J and that application is pending before the Full Court of the Federal Court, to be heard on 17 August, as we have been informed since argument in this interlocutory application. The orders of Foster J have been stayed in the interim.
The issues arising under s 355-25 and s 355-50 on the one hand and s 355-75 on the other hand are different.
The applications before the Tribunal were made on 5 May 2017 after the Information Commissioner (from whom the present applicants had initially sought review of the decisions) decided not to undertake a review pursuant to s 54W (b) of the FOI Act since it was desirable that this Tribunal consider the reviewable decisions. The Commissioner of Taxation has applied to the Tribunal that the pending proceedings before it be stayed until the appeal (if leave be granted) to the Full Federal Court from the orders made by Foster J has been finally determined or otherwise disposed of. In principle such an order or direction is within the discretion of the Tribunal under s 33(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
We must have regard to the dictates of s 2A of the AAT Act, and to the prima facie right of the applicants to have their review applications heard in the ordinary course, and we also have regard in dealing with the Commissioner’s request for a stay to the fact that access to the documents is requested by the applicants for the purposes of their pending application for a permanent stay of proceedings NSD 1600 of 2015, so that any delay in hearing the applications for review may produce a delay in the preparation of the permanent stay application. Whatever may be the outcome of the proposed appeal to the Full Federal Court, the review before the Tribunal will still need to be determined. Not only are the questions arising under ss 355-25 and 355-50 of Schedule 1 to the TAA different from that which was decided by Foster J, but 50 documents have been identified as falling within the scope of both the subpoena and the FOI request, and we were informed during the interlocutory hearing that altogether some 370 documents fall within the scope of the FOI request. By the revised decision, the Commissioner has asserted that documents within the scope of the FOI requests are within exemptions under one or more of ss 38, 42 or 47E of the FOI Act, so that issues of legal professional privilege and issues under s 47E of the FOI Act will arise under the reviews.
Mr Davidson of counsel, who appeared before us on behalf of the Commissioner, submitted that the findings made by Foster J in paragraph [114] of his Honour’s judgment of 5 April on the characterization of proceedings NSD 1600 of 2015 as being for, or having the purpose of the recovery of unpaid tax, if undisturbed on appeal, may stand in the path of submissions intended to be made by the Commissioner before the Tribunal. We accept that guidance given by the Full Federal Court upon that question may assist the resolution by the Tribunal of some issues arising before the Tribunal. However we are not persuaded that an order staying the reviews before the Tribunal is necessary or appropriate under the present circumstances.
In the first place case management directions falling short of the making of a stay may suffice to overcome the problem identified by the Commissioner, depending when judgment is delivered in the Full Federal Court.
We have not understood that any issue of fact arose before Foster J as to his findings made in paragraph [114] of the judgment of 5 April. The evidence before his Honour was put before the Court only by the Commissioner, and Mr Davidson identified legal rather than factual challenges intended to be made to the findings on paragraph [114] on appeal to the Full Court.
The decision of the Tribunal on these applications is also likely to involve questions of law on which either party may appeal to the Federal Court with consequent possible delay to the preparation of the stay application pending in NSD 1600 of 2015. That may suggest a further reason why the decision of this Tribunal should be given earlier rather than later.
The prejudice which the Commissioner identified if a stay is not granted relates to matters of cost and we do not think that in the context of the dispute between the present parties a matter of cost, arising from the need to address or lead evidence on alternative bases, should outweigh the need to proceed with the hearing of these reviews as soon as reasonably possible.
For those reasons we have decided that the interests of justice do not require the grant of the stay requested by the Commissioner at this stage. If necessary the matter may be considered again if circumstances change.
We will list the proceedings for directions on a date to be arranged with the parties.
I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe and Deputy President B. W. Rayment
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Associate
Dated: 14 July 2017
Date of hearing: 5 July 2017 Counsel for the Applicant: Mr J Hmelnitsky SC and Ms T Phillips Solicitors for the Applicant: Speed and Stracey Lawyers Counsel for the Respondent: Mr J Davidson Solicitors for the Respondent: Australian Government Solicitor
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