Clarke and Kann v Deputy Commissioner of Taxation

[1983] FCA 341

Re: CLARKE AND KANN
And: DEPUTY COMMISSIONER OF TAXATION (1983) 72 FLR 166
No. G60 of 1983
Administrative Law - Income Tax

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.(1)

CATCHWORDS

Administrative Law - judicial review - notices sent by Deputy Commissioner of Taxation requiring information and documents - extension of time for compliance sought on ground that validity of legislation pursuant to which notices sent under challenge in High Court - extension refused - validity of legislation thereupon challenged in proceedings for review - also Commissioner said to have omitted to take into account certain relevant considerations - application for judicial review said to be incompetent - whether decisions to serve notices and to refuse extension of time for compliance therewith decisions leading up to the making of assessments of tax - whether validity of legislation under which decisions made able to be challenged in application for judicial review.

Taxation (Unpaid Company Tax) Assessment Act 1982, ss.4, 5, 6, 7 and 8.

Income Tax Assessment Act 1936, ss.8, 16 and 264.

Administrative Decisions (Judicial Review) Act 1977, ss.3, 5 and para.(e) of Schedule 1.

Income Tax - Notice to furnish information and documents - Extension of time for compliance sought on grounds that validity of legislation under challenge in High Court - Extension refused - Whether any power to extend time - Whether decision refusing extension open to judicial review - Income Tax Assessment Act 1936 (Cth), ss 8, 264 - Taxation (Unpaid Company Tax) Assessment Act 1982 (Cth), s. 4 - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 5 (1), Sched. 1, par. (e).

Administrative Law - Judicial review - Notice from Commissioner of Taxation to furnish information and documents - Extension of time for compliance sought - Extension refused - Whether decision refusing extension open to review - Review of decision - Whether Commissioner bound to take into account certain matters - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 5 (1), Sched. 1, par. (e).

Administrative Law - Judicial review - Decision made under an enactment - Validity of enactment under challenge in High Court in separate proceedings by third parties - Decision attacked on grounds that decision-maker failed to take into account possible invalidity of enactment - Decision also attacked on grounds that enactment invalid - Whether a decision "under an enactment" - Whether decision open to review - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 3 (1), 5 (1).

HEADNOTE

The Taxation (Unpaid Company Tax) Assessment Act 1982 (Cth) (TUCTA Act) incorporates, by reference, many of the provisions of the Income Tax Assessment Act 1936 (Cth) (ITA Act). Relying on s. 264 of the ITA Act, as incorporated into the TUCTA Act, the Commissioner issued a notice to the applicants requesting information about the sale of certain shares and seeking production of certain documents. At the time, the constitutional validity of the TUCTA Act had been challenged in the High Court in separate proceedings by third parties. The High Court had reserved its decision. The applicants sought an extension of time to comply with the notice until such time as the High Court delivered its decision. The Commissioner refused.

Proceedings were commenced by the applicant under the Administrative Decisions (Judicial Review) Act 1977 (Cth) Judicial Review Act for review of the Commissioner's decision to refuse the extension. The applicant claimed, inter alia, that the Commissioner ought to have taken certain matters into account, all of which were based on the possibility of the High Court holding that the TUCTA Act was invalid. The applicant also sought to argue that the TUCTA Act was in fact invalid and that the Commissioner's decision to issue the notice was therefore invalid. The Commissioner claimed, inter alia, that the decisions sought to be reviewed were excluded by Sched. 1, par. (e) of the Judicial Review Act, that he had no power to extend the time in any event, and that the applicants could not assert the invalidity of an enactment as a ground for review of a decision purportedly made under it.

Held: (1) The Commissioner has ample power and discretion under s. 8 of the ITA Act (which provides for the Commissioner to have the general administration of the Act) to extend the time previously fixed by him for compliance with a notice under s. 264. Both sections are incorporated, by reference, into the TUCTA Act.

(2) The decisions to serve the notices and the decisions to refuse the applicant's request for an extension of time for compliance are not decisions making, or forming part of the process of making, or leading up to the making of assessments of tax. Therefore par. (e) of Sched. 1 to the Judicial Review Act does not exclude the decisions from review under that Act.

Tooheys Ltd v. Minister for Business and Consumer Affairs (1982) 42 ALR 260, referred to.

(3) A decision made under what purports to have been an Act of the Commonwealth Parliament is a decision "under an enactment" for the purposes of the Judicial Review Act, and it is therefore open to review notwithstanding that the only attack upon the decision is an attack upon the validity of the legislation under which it was made. This follows from the wide construction that should be given to the intended operation of the Judicial Review Act.

Collector of Customs (N.S.W.) v. Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338, per Bowen C.J. at 341-344; Sean Investments Pty Ltd v. Mackellar (1981) 38 ALR 363, per Deane J. at 370-371; and Lamb v. Moss (1983) 49 ALR 533, referred to.

(4) The matters (flowing from the possible invalidity of the TUCTA Act), claimed by the applicant to have been relevant considerations which, it was said, the Commissioner failed to take into account in refusing an extension are certainly matters which he could have taken into account if he had chosen to do so. However, it has not been shown that he was bound, in the circumstances, to take them into account. The Commissioner's discretions to issue a notice under s. 264 and to extend the time for compliance with it are completely unfettered and it is a matter for him how he exercises them.

R. v. ABC; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49-50; and Sean Investments Pty Ltd v. Mackellar (1981) 38 ALR 363, per Deane J. at 374-375, applied. Ahern v. Deputy Commissioner of Taxation (1983) 14 ATR 807, distinguished.

(5) Because a decision of the High Court, to be handed down in the near future, will resolve the question of the validity of the TUCTA Act, it would be futile for this Court to hear argument on that question directed to showing that the decision to issue the notice was invalid.

HEARING

Brisbane, 1983, October 6; November 3, 4. #DATE 4:11:1983

APPLICATION.

Application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of the respondent's decisions to issue notices under s. 264 of the Income Tax Assessment Act 1936 (Cth) as incorporated into the Taxation (Unpaid Company Tax) Assessment Act 1982 (Cth) and decisions to refuse to extend the time for compliance with the notices.

J. Dowsett Q.C., I. D. F. Callinan Q.C., and D. G. Russell, for the applicant.

G. L. Davies Q.C., and R. I. Hanger, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: Clarke & Kann.

Solicitor for the respondent: T. A. Sherman, Acting Commonwealth Crown Solicitor.

F.P.C.

ORDER

1. The objection to competency be overruled.

2. The respondent pay the applicant's costs thereof.

3. Application be stood over generally with liberty to either party to restore it to the list on seven days' notice to the other.

Objection to competency overruled.

JUDGE1

By their amended application in this matter the applicant firm of solicitors seeks the review of the following decisions of the respondent, namely:

(a) to issue notices directed to the applicant dated 2 August, 1983, purportedly pursuant to s.264 of the Income Tax Assessment Act 1936 and s.4 of the Taxation (Unpaid Company Tax) Assessment Act 1982 requiring the supply of the information therein specified by the applicant to the respondent on or before the twenty-third day of August 1983;

(b) to refuse the requests of the applicant for extensions of time to comply with the said notices.

The grounds of the application and the particular provisions of the Administrative Decisions (Judicial Review) Act 1977 relied upon are as follows:
(1) The respondent did not have jurisdiction to make
the decision - paragraph 5(1)(c);
(2) The decision was not authorised by the enactment in pursuance of which it was purported to be made - paragraph 5(1)(d);

(3) The making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made by reason of the fact that the respondent:-

(a) failed to take a relevant consideration into account in the exercise of the power - paragraph 5(1)(e) and paragraph 5(2)(b);

(b) exercised the power in a way that constitutes abuse of the power - paragraph 5(1)(e) and paragraph 5(2)(j);

(4) The decision was otherwise contrary to law -
paragraph 5(1)(j).

Three notices each dated 2 August, 1983, and said to be pursuant to s.264 of the Income Tax Assessment Act 1936 ("the Assessment Act") were served, one in respect of a company J.B.J. Pty. Limited, one in respect of a company John W. Breene Pty. Limited, and one in respect of a company John W. Breene (C.Q.) Pty. Limited. It is unnecessary to refer to the detail of them, but they sought a great deal of information about the sale of shares in each company. The notices also sought the production of certain documents. Each notice concludes with the words, "Take notice that should you fail to comply with the above requirements legal proceedings may be commenced without further notice."

The applicant was the solicitor for each of the companies. On 12 August, 1983, letters were written by the applicant to the respondent. Amongst other things the letters said (I refer to that written in relation to the company J.B.J. Pty. Limited):

"As the former Solicitors for J.B.J. Pty. Ltd. we have duties of confidence to the Company. The only circumstances under which we could properly divulge any information in our possession to you are either upon instructions from our client to do so, or if our duty of confidence is over-ridden by operation of law. "We are not instructed to disclose any of the information sought by you. As you are aware the constitutional validity of the Recoupment Act is currently being challenged before the High Court of Australia, argument having been heard and the decision reserved. You will therefore appreciate that your request places us in a most invidious position in that if we supply the information and that legislation is held invalid, we shall have not complied with our duty to our former client, whilst if we fail to supply the information and the legislation is held valid, we shall not have complied with our duty as officers of the Court. We accordingly request that you extend the time for compliance with the requirement contained in your letter under reply until twenty-one (21) days after the High Court has delivered its decision as to the constitutional validity of the Recoupment Act. In return for such an extension of time, we would, of course, undertake during the period of such extension not to do any act which would impair the capacity of this firm to supply the information requested in the Notice. Should you refuse this request we request pursuant to sub-section 13(1) of the Administrative Decisions (Judicial Review) Act 1977 that you furnish us with a statement in writing setting out the findings on material questions of fact relied upon in making that decision, referring to the evidence or other material on which your findings are based and giving the reasons for your decision."

On 19 August, 1983, the respondent replied to the letters of 12 August, 1983. He said that compliance with the notices was insisted upon and that he would advise in writing of his reasons for his decision to serve the notices in due course.

The applicant wrote again on 22 August, 1983. Reference was made to the previous correspondence. The letter continued:

"We assume that in each case you have refused our request for an extension of time to comply with the Notice. We do however apply for an extension of time to comply with the Notice until seven (7) days after you have furnished your reasons for your decision refusing our original request in accordance with Section 13 of the Administrative Decisions Judicial Review Act 1977. As the time for compliance with your original Notice expires tomorrow we must insist upon a reply to the request contained herein this day."

As requested the respondent answered the letter on 22 August, 1983. He said that he repeated that he insisted upon compliance with the notices under s.264 of the Assessment Act. He continued:

"I have not extended the time for compliance with the notice in accordance with the requests made in either the abovementioned letter or the previous letter in which a deferment was requested. Every effort is being made to supply you with the reasons in writing for my decision not to extend the time for compliance with the notice at an early date. However, I point out that section 13 of the Administrative Decisions (Judicial Review) Act 1977 allows a maximum period of twenty-eight (28) days in which to prepare a statement of reasons and furnish same to the person making the request. There has been insufficient time following receipt of your request to enable such a statement to be prepared and furnished prior to 23 August 1983."

The application herein was filed the day after the respondent's letter was written, that is, on 23 August last.

It is next appropriate to refer to the relevant legislation. On 13 December, 1982, the Taxation (Unpaid Company Tax) Assessment Act 1982 ("the Recoupment Act") came into force. For the purposes of this case, its complex provisions do not need to be fully understood. Its principal sections are ss.5, 6, 7 and 8. Their effect is to make liable for company tax unpaid as a result of a company's financial failure certain persons including former shareholders, directors and promoters. Liability will be incurred if before the commencement of the Act shares in the company were sold pursuant to a scheme as therein defined.

Sub-section 4(1) of the Recoupment Act is as follows:

"Unless the contrary intention appears in this Act, sections 6 and 7A, Part II, section 21, Parts IV and V, Division 1 of Part VI, and Parts VII and VIII of the Assessment Act, and regulations made under that Act, apply for the purposes of the assessment and collection of recoupment tax, and the collection of late payment tax, in like manner, mutatis mutandis, as those provisions apply for the purposes of the assessment and collection of income tax under the Assessment Act."

It is to be observed that included in Part II is s.16 of the Assessment Act, and included in Part VIII is s.264 of the Assessment Act. Sub-section 16(2) of the Assessment Act provides:

"Subject to this section, 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."

The operation of s.16, insofar as the Recoupment Act is concerned, is affected by sub-sec.4(4) of that Act, but not materially so far as the present case is concerned. Section 264 of the Assessment Act is, so far as material, is as follows:

"(1) The Commissioner may be notice in writing require any person, whether a taxpayer or not, including any officer employed in or in connexion with any department of a Government or by any public authority -

(a) to furnish him with such information as he may require; . . . . . .

(2) The Commissioner may require the information or evidence to be given on oath and either verbally or in writing, and for that purpose he or the officers so authorized by him may administer an oath. . . . . . "

The validity of the Recoupment Act has been challenged in the High Court in two cases, MacCormick v. The Commissioner of Taxation (S45 of 1983) and Camad Investments Pty. Limited v. The Commissioner of Taxation (S59 of 1983). The hearing of the cases has concluded and the Court has reserved its decision. There is no indication when judgment will be delivered.

The respondent and one of his officers have sworn affidavits. One purpose of these was to show that the notices under s.264 of the Assessment Act were served for the purposes of assessing what amount of recoupment tax, if any, is payable by a number of individuals, all of whom had a relevant connection with one or more of the companies at some time in the past. The affidavits contained a detailed account of how this connection was said to arise. The evidence was led in order to show that the decisions to serve the notices were decisions making, or forming part of the process of making, or leading up to the making, of assessments or calculations of tax within the meaning of para.(e) of Schedule 1 of the Judicial Review Act. If that were so, the decisions would not be reviewable; see the definition of "decision" in sub-sec.3(1) of the Judicial Review Act.

A further matter deposed to by the respondent was as follows:

"At the time of issuing the said notices and also at the time of refusing an extension of time for compliance with the said notices I was aware of and took into account the fact that the High Court of Australia had reserved its decision in the following matters which had come before it: . . . . "

MacCormick's case and the Camad Investment case were then referred to.

The respondent, although he claims to be under no obligation so to do, has provided reasons pursuant to subsec.13(1) of the Judicial Review Act. The reasons themselves are broken up into two parts, those for deciding to issue the notices under s.264 and those for deciding to insist upon compliance with the notices. Those are the two groups of decisions review of which is sought.

The reasons for the first mentioned decisions were stated to be:

"1. The Commissioner is charged with the general administration of the Taxation (Unpaid Company Tax) Assessment Act 1982.

"2. Issued the notices for the purpose of assessing what amount, if any, is payable by any or all of the following persons:

John William Breene Beryl Bernadette Breene Nicola Breene Jonathan J. Breene Michael J. Breene David J. Breene William J. Hodby John Arthur Redshaw Roy W. Rickuss

pursuant to the provisions of the Taxation (Unpaid Company Tax) Assessment Act 1982."

The reasons for the second mentioned decisions were stated to be:

"The Commissioner is charged with the general administration of the Taxation (Unpaid Company Tax) Assessment Act 1982. He is obligated to administer that Act according to its terms until such time as it is found to be invalid in some material respect. The fact that the constitutional validity of the aforementioned Act has been challenged before the High Court by other parties was taken into account but I decided that it should not affect my continued administration of the Act."

The respondent objected to the competency of this application. In his amended notice of objection to competency three grounds were relied upon. They were:

"1. The Decision of the Respondent to refuse the request of the Applicant for an extension of time to comply with notices issued pursuant to Section 264 of the Income Tax Assessment Act 1936 (as amended) and dated 2 August 1983 is not a Decision to which the Administrative Decisions (Judicial Review) Act 1977 applies by virtue of Section 3 and Schedule 1(e) of the aforementioned Act; and further,

2. The Decision to issue the said Notices is not a decision to which the Administrative Decisions (Judicial Review) Act 1977 applies by virtue of Section 3 and Schedule 1(e) of the aforementioned Act; and further,

3. In proceedings under the Administrative Decisions (Judicial Review) Act 1977 the validity of the enactment in purported pursuance of which the decision sought to be impugned was made, must be assumed."

I have reached the conclusion that the application is competent. I have considered the terms of para.(e) of Schedule 1 of the Judicial Review Act, but in my opinion neither the decisions to serve the notices nor the decisions to refuse the applicant's request for an extension of time are within its terms. The decisions are certainly not decisions making assessments of tax, nor can they be decisions forming part of the process of making such assessments.

There is an arguable basis for saying they are decisions leading up to the making of assessments of tax. By reason of the decisions information may be obtained which will lead to assessments being made. But in my opinion the paragraph was intended to cover only those cases where what is decided to be done is a step likely to lead to an assessment which, if made, can be objected to, and if the objection be disallowed, the appellate procedure invoked. The legislature was anxious not to provide a person dissatisfied with an assessment with an alternative avenue of redress, nor was such a person to be permitted to have reviewed any decision of the Commissioner which formed any step in the process leading to actual assessment.

To my mind the decisions to serve the notices under s.264 were a prelude to any decision to trigger off the assessment process. The provision is intended, inter alia, to assist the Commissioner to ascertain whether there is, or may be, a basis for an assessment. It is what he may discover as the result of the service of a notice which may trigger the assessment process. It is then that it will be likely that there will be decisions "leading up to the making of" an assessment, but not before. I refer generally to Tooheys Limited v. Minister for Business and Consumer Affairs (1981) 36 A.L.R. 64 at pp.77-78, affirmed on appeal (1982) 42 A.L.R. 260; I refer especially to p.271. I would add that I find it quite impossible to understand how decisions to refuse an extension of time to comply with the notices could possibly be decisions leading up to the making of assessments.

The third ground upon which it is said the application is incompetent raises the question whether this Court has power to entertain an application for review if the impugned decision is claimed to have been made under an enactment, the validity of which is challenged.

The submission of the respondent was as follows. Only decisions made under an enactment may be reviewed. Grounds 1, 2 and 4 of the amended application earlier set out all rely on the alleged invalidity of the Recoupment Act. That is why it is said that the respondent had no jurisdiction to make the decisions, particularly those pursuant to which the notices were served. It is also why the decisions are said not to be authorised by the enactment, i.e. the Recoupment Act, and why the decisions are said to be contrary to law. Counsel for the applicant agreed that invalidity of the legislation was the basis for these grounds. With this as his starting point counsel for the respondent then submitted that if the Recoupment Act were invalid, there could be no reviewable decision because, ex hypothesi, the decisions would not be decisions under an enactment. There could be no enactment if the legislation pursuant to which the decisions were made were found to be invalid.

One answer made by counsel for the applicant was that the decisions in question, being decisions under s.264 of the Assessment Act, were not made under the Recoupment Act but under the Assessment Act, the validity of which was not in doubt. Upon reflection I think that submission must be rejected. Sub-section 4(1) of the Recoupment Act, which I have earlier set out, provides in part that the provisions of the Assessment Act, which are referred to and which include s.264, apply for the purposes of the assessment and collection of recoupment tax in like manner as those provisions apply for the purposes of the assessment and collection of income tax under the Assessment Act.

In In re Woods' Estate; ex parte Her Majesty's Commissioners of Works & Buildings (1886) 31 Ch.D. 607 the Court of Appeal held that if a subsequent Act brings into itself by reference some of the provisions of a former Act, the legal effect of that is to write those sections into the new Act just as if they had been actually printed into it. That view was adopted by Williams J. when a judge of the Supreme Court of New South Wales in Perpetual Trustee Co. (Limited) v. Wittscheibe (1940) 40 S.R.(N.S.W.) 501 at p.510; and when a judge of the High Court in Cadbury-Fry-Pascall Pty. Limited v. Federal Commissioner of Taxation (1944) 70 C.L.R. 362 at p.388.

The notices make clear that they were issued for the purposes of the Recoupment Act. They say in part,

"pursuant to paragraph 264(1)(a) of the Income Tax Assessment Act 1936 as that paragraph is incorporated with the Taxation (Unpaid Company Tax) Assessment Act 1982". It follows that if the Recoupment Act is invalid, s.264 insofar as it is incorporated therein, is invalid also.

So the question arises, is a decision open to review if the basis of the complaint about it is that it is made pursuant to an enactment which is beyond constitutional power. In other words, does this Court have jurisdiction under the Judicial Review Act to determine that question.

In Sean Investments Pty. Limited v. MacKellar (1981) 38 A.L.R. 363, Deane J. said (pp.370-371):

"The decision of the Minister on a review pursuant to s.40AE(3) (of the National Health Act 1953) is liable to be challenged before the Administrative Appeals Tribunal pursuant to the provisions of the Administrative Appeals Tribunal Act 1975. The jurisdiction of this court, pursuant to the Administrative Decisions (Judicial Review) Act 1977, to review the Minister's decision is a limited one. The court is not entrusted with the duty or power to conduct a review on the merits of administrative decisions to which that section applies. It is "restricted to a consideration of whether it appears that the decision under review is affected by one or more of the 'grounds' specified in s.5(1) of that Act. Generally speaking, those grounds correspond to the established common law grounds for attacking the decision of an administrative decision maker. The court must, in my view, be vigilant to ensure that it does not, under the guise of reviewing administrative decisions on questions of law, trespass in fields of administrative decision making in relation to which it possesses neither mandate nor special qualification."

What his Honour was there concerned to say was that the Court must not enter upon the consideration of the merits of a decision review of which is sought. But in saying what he did, he drew attention to the intended operation of the Act. As he said, generally speaking the grounds specified in sub-sec.5(1) of the Judicial Review Act correspond to the established common law grounds for seeking the review of a decision made in the course of the administration of government. If in a court of general jurisdiction, relief by way of declaration of right or prerogative writ were sought, it would be open to an applicant to seek that relief on the ground that the legislation pursuant to which action was being taken was invalid. That is a common experience. In Lamb v. Moss (unreported, 12 October, 1983) this Court has recently said that the Judicial Review Act must be given a wide construction intended as it was to provide comprehensively for judicial review of administrative action in the Commonwealth sphere. The respondent's submission requires one to read the word "valid" into the definition of "decision" in sub-sec.3(1) before the word "enactment". In the context of an Act intended to have the wide application of this one, I see no reason for doing so. The decision is under what purports to have been an Act of the Commonwealth Parliament. In my opinion the legislature intended such a decision to be open to review notwithstanding that the only attack upon the decision was an attack upon the legislation under which it was made. For the purposes of the Act, the decision was still a decision under an enactment. On this question I refer generally to Collector of Customs (N.S.W.) v. Brian Lawlor Automotive Pty. Limited (1979) 24 A.L.R. 307 especially per Bowen C.J. at pp.313-315.

The objection to competency having been overruled, what are the remaining issues? The first is the validity of the legislation, a matter I propose to leave till the end, and the second, the third ground in the amended application. It is essentially based on paras. 5(2)(b) and 5(2)(j) of the Judicial Review Act. In the end it was para.(2)(b) which was relied upon. That paragraph provides, by reference back to para.5(1)(e), that an improper exercise of a power is to be construed as including a reference to failing to take a relevant consideration into account in the exercise of a power.

In The Queen v. The Australian Broadcasting Tribunal; ex parte 2HD Pty. Limited (1979) 144 C.L.R. 45, the Court said (pp.49-50):

"Here the problem lies in ascertaining what are the proper limits of the discretion. In the absence of some positive indication of the considerations on which a grant or refusal of consent is to depend, the discretion is 'unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view', to use the words of Dixon J. in Browning (Water Conservation and Irrigation Commission (N.S.W.) v. Browning (1949) 74 C.L.R. 492 at p.505). "In that case his Honour went on to remark, (as he had done earlier in Swan Hill Corporation v. Bradbury((1937) 56 C.L.R. 746 at p. 758)), 'on the impossibility, when an administrative discretion is undefined, of a court's doing more than saying that this or that consideration is extraneous to the power'. The applicant therefore shoulders a very heavy, indeed an impossible, burden when it seeks to show in this case that the Tribunal has no discretion to refuse consent except on the ground that the transfer will bring about a contravention of the Act."

In Sean Investments Pty. Limited v. Mackellar (supra) Deane J. said (pp.374-375):

"As has been seen, a failure to take a relevant consideration into account in the exercise of a power is under s.5(1) and (2)(b), a permissible ground for attacking a decision pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977. This does not, however, mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account. In this regard, I consider that the following comments of the United Kingdom Court of Appeal (Megaw, James and Geoffrey Lane L.JJ) in Elliott v. Southwark London Borough Council (1976) 2 All ER 781: (1976) 1 WLR 499 at 507, in relation to a local authority, are appropriate in respect of the recommendations of the Committee and the decision of the Minister in the present case: 'It is clear that the matters which the local authority should consider . . . vary from case to case. It is not for the court to prescribe a list of matters which must always be considered " 'or to prescribe which factors should be given more weight than others. It is worth repeating that the function of the court, where such issues are raised, is not to substitute its own opinion or decision on matters which Parliament has left to the judgment of the local authority but to decide whether the local authority in reaching its decision has acted in accordance with the statutory provisions.'

In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide."

Also to be taken into account in relation to this head of argument is the passage earlier cited from the judgment (supra at pp.16-17). The decision of Deane J. in Sean Investments Pty. Limited was affirmed on appeal: (1982) 42 A.L.R. 676.

Section 264, like the sections in the cases I have cited contains no criteria which the Commissioner is to take into account before deciding to issue a notice under s.264. And there is nothing there said as to the matters to be taken into account in determining whether a request to extend the time for compliance with such a notice should be granted or refused. Indeed, it was argued at one stage that because there was no reference at all to time in the section, the Commissioner had no power to extend any time limited by him for compliance with his notices. It was said that when the Act intended the Commissioner to have a power to extend time, it expressly said so, and a number of instances of this were given.

That a notice must in order to be valid limit a time and designate a place for compliance seems common sense, and is in any event established by the decision of the New South Wales Court of Criminal Appeal in Ganke v. Deputy Federal Commissioner of Taxation (1975) 75 A.T.C. 4097, especially at p.4100. The Commissioner under s.8 of the Assessment Act which is in Part II of that Act, and thus picked up by the Recoupment Act, is to have the general administration of the Act. In my opinion that gives him ample power and discretion to extend the time he has limited in a notice under s.264 for compliance with it. But there is of course no indication in the Act of the criteria which are to guide the Commissioner in making a decision to grant or refuse such an extension of time.

The particular matters upon which reliance was placed by the applicant to found the relevant consideration ground were:
(a) Compliance with the notice would involve the applicant in a breach of its duty of confidence to the companies who were involved. It is to be observed that it is the duty of confidence which is referred to; no reliance was placed on legal professional privilege
(b) To furnish the information and to produce the documents at this stage, when the exercise might prove unnecessary if the legislation were invalidated, might involve the applicant or its clients in a great deal of unnecessary expense and time and trouble.
(c) The applicant had given an undertaking in the letter that was written on 12 August, 1983, that during the period of an extension of time it would not do any act which would impair the capacity of the applicant to supply the information requested in the notices.

In addition to these grounds, there seemed to me to pervade the submissions of the applicant the suggestion that the respondent had paid insufficient attention to the fact that the Recoupment Act was under serious challenge in the High Court.

There is evidence, as I have mentioned, that the matter of the undertaking was placed before the respondent before he made his decision. The same applies to the matter of confidentiality which is also relied upon. I can find no evidence relating to time, expense and trouble, although it is true to say that there is evidence which has been placed before me of that matter in an affidavit of Mr. Ahern. However, it is what was placed before the respondent that is important.

In my opinion, this is a case where the principles enunciated in the 2 HD case and the Sean Investments casw apply. I have reached the conclusion that it is not a case where the Commissioner was bound to take into account any of the matters upon which reliance is placed. In passing it may be observed that if the respondent had taken into account the matter of confidentiality, he might well have considered that there was a sufficient protection afforded to the applicant under s.16 of the Assessment Act. But his reasons do not disclose that that matter was taken into account, so that is not a consideration upon which one should rely in reaching a conclusion in this case.

In my judgment in Ahern v. Deputy Commissioner of Taxation (unreported, 27 October, 1983) I took the view that although the discretion in that case was equally wide, the fact that an objection had not been dealt with was, in the circumstances of that case, a matter which the Deputy Commissioner there was bound to have regard to. In my opinion, this case falls on the other side of the line. The matters relied upon, except perhaps that of expense (about which he does not appear to have been told) are certainly matters which the respondent could have taken into account if he had chosen to do so. But the discretion is his, and it is a matter for him how he exercises it. Accordingly, I reject the submissions made in support of ground three of the application.

The other grounds, that is to say, 1, 2 and 4, as earlier said depend upon the legislation being invalid. The parties have offered to argue that matter before me. I have expressed the strong view that it is futile for them to do so. The matter is under reservation in the High Court. It is true that it may be some time before the judgment is given. But if the matter were argued before me, it could not be so argued in under, I would think, two days. I would need to reserve my judgment. It would be almost certain that there would be an appeal from what I did to the Full Court of the Federal Court, and then to the High Court; or it may be that the matter would be removed into the High Court under the provisions of the Judiciary Act 1903. There is simply no usefulness in my giving a judgment in the matter. That is because it will not be left to me to decide it. The matter will be decided when the High Court gives its judgment in the other cases in due course.

If I were to attempt to deal with the argument, this matter would inevitably find its way into the High Court, unless somewhere along the line the High Court were to deliver judgment and the matter were put an end to in that way. Although I may have indicated to the contrary yesterday morning, on reflection overnight, I have reached the firm conclusion that I ought not embark upon the hearing of the argument, and I do not propose to do so. For that reason, the matters yet to be determined in this application will be stood over to be dealt with at a later date. That means that the essential question which has to be considered is whether the interlocutory relief which has been granted so far should continue. It is a matter upon which I am prepared to hear the parties now or at some future time.

(Discussion ensued. After an adjournment his Honour made the following orders:
1. The objection to competency be overruled.
2. The respondent to pay the applicant's costs thereof.
3. Application stood over generally with liberty to either party to restore it to the list on 7 days' notice to the other.

The respondent made no application for the dissolution of or the variation of the terms of the existing interlocutory orders).