Awad v Deputy Commissioner of Taxation

[2001] FCA 369

FEDERAL COURT OF AUSTRALIA

Awad v Deputy Commissioner of Taxation [2001] FCA 369

TAXATION – income tax – assessment – Commissioner taking into account records of conversation obtained by officers pursuant to purported warrant – warrant subsequently held invalid – whether assessment invalid

Listening Devices Act 1984 (NSW)
Judiciary Act 1903 (Cth)
Income Tax Assessment Act 1936 (Cth)

TAWFIQ AWAD v DEPUTY COMMISSIONER OF TAXATION
NO. N 1086 OF 2000

HEEREY, SUNDBERG AND MERKEL JJ
2 MARCH 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1086 OF 2000

BETWEEN:	TAWFIQ AWAD APPLICANT
AND:	DEPUTY COMMISSIONER OF TAXATION RESPONDENT
JUDGES:	HEEREY, SUNDBERG AND MERKEL JJ
DATE OF ORDER:	2 MARCH 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal will be dismissed.

2.        The applicant to pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1086 OF 2000

BETWEEN:	TAWFIQ AWAD APPLICANT
AND:	DEPUTY COMMISSIONER OF TAXATION RESPONDENT

JUDGES:	HEEREY, SUNDBERG AND MERKEL JJ
DATE:	2 MARCH 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. The issue arising before the primary judge was whether an income tax assessment issued by the Commissioner on 31 July 1997 was invalid because in making the assessment the Commissioner took into account records of conversations obtained by listening devices operated by officers of the New South Wales Crime Commission pursuant to a purported warrant issued under the Listening Devices Act 1984 (NSW) (“the Act”). On 29 March 1999 in R v Eid (1999) 46 NSWLR 116 the New South Wales Court of Criminal Appeal held the warrant was invalid.

2. The primary judge rejected Mr Awad’s claim under s 39B of the Judiciary Act 1903 (Cth) because at the time of the assessment the Commissioner was not acting unlawfully in using the information contained in the records as that use at that time was not in breach of any provision of the Act. In those cases a necessary precondition to raise the question of the validity of the assessment has not been satisfied. It must follow that his Honour’s decision was plainly correct for the reasons his Honour gave and which we would adopt.

3. On this basis there is no question of conflict between ss 166 and 167 of the Income Tax Assessment Act 1936 (Cth) and the Listening Devices Act since the Commissioner did not contravene the latter. It is not therefore necessary to deal with the constitutional arguments raised by the Attorney-General of New South Wales who intervened pursuant to s 78A of the Judiciary Act. 

4. The appeal will be dismissed with costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey, Sundberg and Merkel.

Associate:

Dated:    3 April 2001          

Counsel for the Applicant:	D J Hammerschlag SC
Solicitor for the Applicant:	Horowitz & Bilinsky
Counsel for the Respondent:	A Robertson SC and D McGovern
Solicitor for the Respondent:	Australian Government Solicitor
Counsel for the Attorney-General	M J Leeming
Solicitor for the Attorney-General	NSW Crown Solicitors Office
Date of Hearing:	2 March 2001
Date of Judgment:	2 March 2001