Bryant, J.R. v Deputy Commissioner of Taxation

[1993] FCA 729

729, 43

JUDGMENT NO. .m.m.w.a .mam.m.w

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CATCHWORDS

I	ADMINISTRATIVE LAW - judicral review of prosecution decisions - whether
I	published pollcy guidelines have the status of law - whether published policy
!	guidelines should be regarded as laying down procedures required by law to be observed - whether "exceptional c~rcumstances" m terms of Si?111es v Federal Comn~ir~ioizer of Taxafior~ & Ors justiijling the Intervention of thls Court In Local Court proceedings established
Crimes Acl 1914 S. 21B
!	Iizcome Tau Assessmerlt Act 1936 S. 221F(l)(a) Tnratioiz Admiizzstratzoil Act 1953 S. SY
Admii1imtive Declsioils (htdic~al Rev~ew) Acl 1977
Freedoin ofh~fonnaf~oiz Act 1982 S. 10
Smiles v Federn1 Coinnlzssioizer of Taualiotz CC Ors (1992) 109 ALR 449 Biitislz Oxygeia CO LId v Miiziskr of Tecklology [l9711 AC 610

11 OCT 1993 I

Black CJ, Burchett and I-Iill JJ
Sydney
15 September 1993

JOSEPH RICNARD BRYANT v DEPUTY COMMISSIONER OF TRX4TION

NG No. 272 OF 1993

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LIMITED DISTRIBUTION

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IN THE FEDERAL COURT OF AUSTRALIA	1
NEW SOUTH WALES DISTRICT REGISTRY	1 NG No 272 of 1993
GENERAL DIVISION	1

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On appeal from a judge of the Federal Court of Australia

BETWEEN:  JOSEPH RICHARD BRYANT

Appellant

AND. DEPUTY COMMISSIONER OF TAXATION

Respondent

I	COURT:	BLACK U, BURCHETT and HILL JJ
PLACE:	SYDNEY
DATE:	15 SEPmMBER 1993
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EX TEMPORE REASONS FOR JUDGMENT

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I	THE COURT:
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This is an appeal from a judgment of Whltlam J in a proceeding brought by the appellant

agarnst the Deputy Commlssloner of Taxat~on in rellance upon the Adnzzizirlraiive

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Deckions (Judicial Review) Act 1977 The appellant sought orders of review in respect of what he contended were decisions by the Deputy Con~missioner of Taxatlon that proceedings be instituted and continued agalnst hlm personally pursuant to S. 8Y of the

Taxafioil Admii~istration Act 1953 for the recovery of pecuniary penalties in respect of offences said to have been committed by virtue of the alleged failure of ski corporations, of which he was a director, to remlt group tax as required by S. 221F(l)(a) of the Iizcoine

I	Tax Assessinei~t Act 1936. The appellant also sought an order of review of what he
contended were decisions of the respondent that reparations be sought, and continue to
I	be sought, from him pursuant to S. 21B of the Cril,~es Acf 1914 for losses allegedly
suffered by the Comm~ssioner by reason of the offences.
Whitlam J observed that the fundamental point of the applicant's case was that the
decisions contravened the published policy guidelines contalned in Income Tax Rullng
IT2246 of 6 February 1986 relating to the use of S. SY of the Taxation Admiirz~sfmfio~z Act
t	1953. But his Honour held that the gu~dellnes did not have the status of law and could
not be regarded as lay~ng down procedures that were requlred by law to be observed.
In any event, hls Honour cons~dered that the declsion of the Full Court of this Court In
Snliles v Federal Commissioner of Tarnfiorl Le Ors (1992) 109 ALR 449 stood as an
"insurmountable obstacle" to the rel~ef the applicant sought, as there were not exceptional circumstances why the Court should Intervene in the crirnlnal proceedings pending in the Local Court. HIS Honour therefore dismissed the appl~cation for judicial revlew, with
costs. Mr Bryant now appeals from that decis~on.

We would dis~nlss the appeal for the following reasons. Flrst, it is clear that S. 10 of the

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Freedorn ofhlformatio~a Act 1982 does not elevate the guidelines so that they have effect

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of substantive law. Section 10 operates in a quite different way and, in any case, only

I	when there is an unpublished document.
i	Secondly, the guidelines do not, m any event, purport to lay down a complete code, and
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i	as Whitlam J pointed out, they do not confine the use of S. SY in the way contended for
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by the appellant. Consistently wlth the llne of cases of which Brifkk Oxygeiz CO Lfd v
Mi)lkter of Techr~ology [l9711 AC 610 is an example, prosecution guidelines could not have that effect, nor could they operate so as to modify the constituents of the offence
created by the Parliament. In any case there is no evldence that the Commissioner failed to take into account the matters to which the guidelines refer. In fact, such evidence as there is suggests that the Commissioner may well have taken into account all ihe circumstances that the appellant contends he was obllged to take lnto account. It was of course for the appellant to make out his case in this respect.
Counsel for the appellant accepted that S~niles was correctly decided and we agree with
the learned primary judge that the decision in that case operates as an insurmountable obstacle to the appellant, given that the subn~ission of counsel for the appellant as to the effect of S. 10 of the Freedom o / l , l f ona t io~~ Act cannot be accepted. There is nothing to suggest that the circumstances here are in any way exceptional so as to justlfy this Court in interfering wlth proceedings in the Local Court.
In these circumstances we do not think it necessary to deal with the objection to
competency.
Accordingly, the appeal is dismissed and the appellant must pay the costs of the
respondent.

I certify that thls and the preceding 2

pages are a true copy of the Reasons

for Judgment herein of the Court.

Assoclate:

Date: 15 September 1993

APPEARANCES

Counsel for the Appellant:  Mr D.J. Thorley

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instructed by:  Townsend Partners

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Counsel for the Respondent:  Mr A. Robertson

w~th MS N. Abadee

!	instructed by:
I	Australian Government Solicitor
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Date of Hearing:	15 September 1993
Date of Judgment:	15 September 1993

TO on ;a Date l l . l O . q 3

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