Australia & New Zealand Savings Bank Ltd v Commissioner of Taxation of the Commonwealth of Australia - [1991] FCA 207

IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG314 of 1989
GENERAL DIVISION )

BETWEEN:

AUSTRALIA AND NEW ZEALAND SAVINGS BANK
LTD.
Applicant
THE COMMISSIONER OF TAXAT I ON OF THE COMMONWEALTH OF AUSTRALIA

Respondent

corn: Jenkinson J.
PLACE : Melbourne
- DATE : 26 April, 1991

MINUTE OF ORDER

THE COURT ORDERS THAT:

1. On or before 25 May 1991 the applicant file and serve a copy of an affidavit stating whether any and if any what document or documents of either of the following classes namely -

or

(i)

a document or a copy of a document by which a communication was made, in or concerning negotiation for the making of any of the instruments specified in sub-paragraphs (i), (ii), (iii), (iv), (v), (vi), (vii), (ix) and (X) of clause A(2)(5) of the further particulars of grounds of disallowance of objection filed 26 November 1990 or for the making of an agreement in performance of which any of the said instruments was made, by or to any person who was a party to any of the said instruments (whether or not a party to the instrument concerning negotiation for the making of which the communication was made) or by or to any officer, servant or agent of such a person;
(ii) a document or a copy of a document containing a record of any negotiation for the making of any of the said instruments or for the making of any such an agreement or containing information about the occurrence of any such a negotiation or about any statement which had before entry on the document of the information been made, or which was after entry on the document of the information made, in the course of such a negotiation -

is or at any time has been in its possession custody or power; and if any such document is not now in its possession custody or power whether and when it parted with it and what has become of it.

2. The motion of which notice is dated 21 June 1990 be otherwise dismissed.

Consideration of the question of the costs of the said motion be adjourned to a date to be fixed.
The directions hearing be adjourned until 2 July
1991.

NOTE : Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRAtIA )
VICTORIA DISTRICT REGISTRY

) No. VG314 of 1989
GENERAL DIVISION 1

BETWEEN:

AUSTRALIA AND NEW ZEALAND SAVINGS BANK
Applicant

AND:

THE COMMISSIONER OF TAXAT I ON 0 F THE

COMMONWEALTH 0 F
AUSTRALIA

Respondent

CORAM: Jenkinson J.
PLACE : Melbourne
M: 26 April, 1991

REASONS FOR JUDGMENT

Motion for particular discovery.

On 6 February 1991 I published conclusions about some of the submissions advanced on the hearing of this

motion, and reasons for those conclusions. These reasons are

to be read in conjunction with what was previously published.

Nothing that has been filed on behalf of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Australia & New Zealand Savings Bank Ltd v Commissioner of Taxation of the Commonwealth of Australia [1991] FCA 207
Case: [1991] FCA 207
Decision Date: 26 Apr 1991

CaseChat Overview and Summary

In the case of Australia and New Zealand Savings Bank Ltd v Commissioner of Taxation of the Commonwealth of Australia, the applicant sought an order for particular discovery of documents, specifically those related to negotiations, in order to substantiate its claim regarding the classification of certain payments under tax law. The court had to decide whether the respondent's request for discovery of documents pertaining to the negotiation of certain financial instruments could be granted despite the lack of formal pleadings. The central legal issue revolved around whether the court could exercise its discretion to order discovery before the issues had been fully defined through pleadings, particularly in light of the respondent's contention that the documents could reveal the true nature of the transactions in question.

Justice Jenkinson examined the circumstances under which the court could grant such an order, considering the respondent's position analogous to that of a defendant seeking discovery before defence. The judge noted the importance of ensuring that the party seeking discovery was not merely "fishing" for information but had a legitimate claim that could be substantiated through the discovery process. The judge found that the respondent's claim was not baseless, as it pertained to the substance of the transactions rather than mere speculation. Consequently, the court exercised its discretionary power to order the discovery of documents that disclosed the negotiations for the making of the instruments, subject to specific limitations to ensure that the respondent received only necessary information to address the issues at hand.

The court's decision balanced the need for justice between the parties with the practicalities of the discovery process. It determined that while the respondent could seek discovery before completing pleadings, the order should be narrowly tailored to avoid granting excessive information. This approach aimed to ensure that the respondent received the necessary documentation to substantiate its claim without unduly burdening the applicant. The final order required the applicant to provide an affidavit detailing any documents in its possession related to the specified negotiations and set a timeline for the filing of such documents. The court also adjourned the consideration of costs and the directions hearing to a later date.

Orders