Commissioner of Taxation v Tang; Commissioner of Taxation v District Court of SA and Tang - [2006] SASC 252

SUPREME COURT OF SOUTH AUSTRALIA
(Miscellaneous Appeal)
COMMISSIONER OF TAXATION v TANG; COMMISSIONER OF TAXATION v DISTRICT COURT OF SA AND TANG
[2006] SASC 252
Judgment of The Honourable Justice Perry
23 August 2006
STATUTES - ACTS OF PARLIAMENT - STATUTORY POWERS AND DUTIES - CONSTRUCTION
The accused, who was charged with defrauding the Commonwealth, during the course of pre-trial proceedings in the District Court, issued a subpoena directed to the Commissioner of Taxation to produce all files containing documents relating to audits of various persons and entities, including three restaurants - the files were generated after various documents were seized by officers of the Australian Federal Police in the course of execution of a number of search warrants – after the Australian Federal Police decided not to lay charges, at the request of the Australian Taxation Office, they handed the papers over to that office – eventually, using some of the papers as evidence of understatement of income, the Commonwealth Director of Public Prosecutions instituted the criminal proceedings – the trial judge ordered production of the documents sought in the subpoena, ruling that the documents were outside the scope of the secrecy provisions set out in s 16 of the Income Tax Assessment Act 1936 (Cth) – held on an application for judicial review of the judge’s ruling, that the ruling was in error – ruling quashed and order substituted upholding the Commissioner’s objection to production.
Crimes Act 1914 (Cth) s 29D; Income Tax Assessment Act 1936 (Cth) s 16, referred to.
R v Clarkson and Ors (No 2) (1982) VR 522; Jaworski v Commissioner of Taxation (2005) 216 ALR 619; Craig v South Australia (1995) 184 CLR 163; Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, considered.

APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - GENERALLY
An appeal to the Supreme Court challenging a ruling by a District Court judge presiding over a criminal trial in which the judge overruled an objection by the Commissioner of Taxation to production of certain tax files the subject of a subpoena served on the Commissioner by the accused, held incompetent.
District Court Act 1991 s 3 and s 43; Criminal Law Consolidation Act 1935 Part 11; Supreme Court Rules r 96A.02; Federal Court of Australia Act 1976 s 24, referred to.
Witness v Marsden and Anor (2000) 49 NSWLR 429; Rochfort v Trade Practices Commission (1981) 53 FLR 364; Rochfort v Trade Practices Commission (1982) 153 CLR 134; In re Markham; Markham v Markham (1880) 16 Ch D 1, considered.

ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - CERTIORARI - DISCRETION OF COURT AND MATTERS PRECLUDING RELIEF - OTHER CASES
Availability of relief pursuant to an application for judicial review sought with respect to a ruling made during the course of criminal proceedings considered – the principle that such applications may only be entertained in rare circumstances discussed and affirmed.
Polley v Bright and Anor (1995) 79 A Crim R 562; Clayton v Ralph and Anor (1987) 45 SASR 347; Dunn v District Court of South Australia Perry J, 23 August 1996, judgment No S5787 (unreported); Haydon v Magistrates Court of South Australia Williams J, judgment No [2000] SASC 449; Re Rozenes, Director of Public Prosecutions and Anor; Ex parte Burd and Ors (1994) 120 ALR 193; John Weeks Pty Ltd v Harris (1990) 49 A Crim R 421; Dimitropoulos v District Court of South Australia (1998) 199 LSJS 7, considered.

COMMISSIONER OF TAXATION v TANG; COMMISSIONER OF TAXATION v DISTRICT COURT OF SA AND TANG
[2006] SASC 252
Miscellaneous Appeal

PERRY J. There are two matters before the Court: a purported notice of appeal from a ruling by a judge of the District Court made in the course of proceedings preliminary to the commencement of a criminal trial in that court, and an inter partes summons issued in this Court seeking prerogative relief with respect to the same ruling.
The ruling by the trial judge was made on 24 February 2006.
The defendant to the District Court proceedings, Laura Le Tang, is charged on information with defrauding the Commonwealth, contrary to s 29D of the Crimes Act 1914 (Cth).
Particulars of the offence allege that between about 1 July 1997 and 31 January 2000 at Adelaide or elsewhere in the State of South Australia, Ms Tang defrauded the Commonwealth by causing Avay & Leong Pty Ltd, as trustee for the Bui and Tang family trust, to declare to the Commissioner of Taxation (“the Commissioner”) that in the financial year ended 30 June 1998 the trust had earned $932,896, or was directly or indirectly knowingly concerned in or party to such declaration, when in fact the trust had earned more.
The issues in these proceedings arise out of the service of a subpoena issued on behalf of the accused directed to the Commissioner. The subpoena seeks the production by the Commissioner of documents described in the subpoena as follows:
1.Special audit files, comprising 6 folders of audits conducted on Rundle Noodle Bar post 28 June 1998 by Jamie Salter, Bill Kay, Tracey Pretty and Moore.
2.All files containing documents relating to the audits of the following entities and/or persons post 29 June 1998:
2.1     David and Rebecca Bui
2.2     Red Rock Restaurant O’Connell Street, North Adelaide
2.3     Indochine Restaurant
2.4     Lemongrass Restaurant
2.5     All documents, file notes or memoranda recording or referring to the meeting on 13 May 1999 between John Ryan, Jamie Salter, Gerry Hamm and Bob Boonstoppel including any documents prepared for the purpose of that meeting or received at that meeting.
The Commissioner has not resisted the production of some of the documents sought, namely documents to do with Rundle Noodle Bar, which was a business associated with the accused, and other documents directly connected to her. Production of the remaining documents is resisted pursuant to s 16 of the Income Tax Assessment Act 1936 (“the ITAA”). I will deal with that section in due course.
All of the documents in question were seized pursuant to search warrants executed on 29 June 1998 by Australian Federal Police (“AFP”).
The execution of the warrants was part of an investigation launched by the AFP, code-named Operation Toxin, the object of which was to investigate what was alleged to be an understatement of income by associated entities in the conduct by them of various restaurant businesses.
The execution of the search warrants resulted in the seizure by AFP of a large volume of material. However, the trial judge held that all of the search warrants were invalid, for reasons which it is unnecessary for present purposes for me to canvass.
After ruling that the search warrants were invalid, the trial judge embarked on a voir dire hearing of an application by counsel for the accused to exclude from evidence at the trial certain of the material obtained by reason of the execution of the warrants.
Although the accused contended that the documents and evidence based upon them should be excluded from the trial, it nonetheless wished to have certain other documents produced in answer to the subpoena, in order to support arguments to be advanced on the voir dire hearing directed to the issue whether it was lawful for the Australian Taxation Office (“the ATO”) to retain what she maintains was the illegally seized material for so long, and to ascertain precisely what use the ATO was making of the documents over a long period of time prior to the commencement of the proceedings in the District Court. These were said to be matters relevant to the discretion to exclude the particular documents and the evidence based on them which the Crown wished to rely upon at trial.
The evidence so far called on the voir dire hearing is said to have established that having considered all of the documents that were seized pursuant to the invalid warrants, the AFP were of the view that no offences could be charged, that is, the offences for which a suspicion had been put forward to justify the issue of the warrants, and at one stage the AFP were intending to return the documents to the persons from whom they had been seized.
However, the ATO asked the AFP not to return the documents, but to hand them over to the ATO. The AFP complied and handed the documents over in 1999.
Thereafter the ATO retained the documents and conducted audits and other analyses of them, while they waited for the lodgement of returns which they anticipated would be likely to demonstrate an understatement of income.
Returns having been lodged which in the view of the Commissioner bore out that prediction, the information in question was filed in the District Court.
On the return of the subpoena, counsel for the Commissioner contended that he was entitled to object to the production of the documents on the ground that to do so would infringe s 16(3) of the ITAA.
In his ruling, the trial judge rejected the Commissioner’s contentions, and ordered that the documents be produced to the court, with the exception of any “returns, assessments or notices of assessment”.
The appeal and the application for judicial review both challenge that ruling. The reason why both proceedings have been issued reflects some uncertainty on the part of counsel for the Commissioner, as to whether there is a right of appeal to this Court from a ruling of that kind.
I deal with that aspect of the matter later in these reasons.
Factual matters
Before dealing with s 16 of the ITAA, I refer to statements which were before the trial judge from two witnesses. They were not called to give evidence, but their statements were tendered on the hearing of the voir dire.
The witnesses were William Anthony Kay and James Salter. At the relevant time, both Mr Kay and Mr Salter were employees of the ATO. Mr Kay has since ceased to be an employee of the ATO.
In his statement, Mr Kay describes his role in the ATO at the relevant time as auditor/team leader in the Special Investigations Section, the main role of which was to audit the investigation of the tax affairs of persons suspected of being involved in serious tax evasion.
He was assigned to assist the AFP after the search warrants had been executed in 1988, to “identify and evaluate” any possible tax offences. He said:
The ATO assistance was to focus on analysing seized documents to look for evidence of tax offences.
He and Mr Salter inspected the contents of seized boxes and bags of documents. Schedules were made and photocopies taken of documents that appeared relevant. He said that the photocopies were taken back to the ATO, “where most of the actual analysis work took place”.
He said in his statement that:
By 26 February 1999 my analysis of the seized records indicated that untaxed cash wages were being paid and earned and that two sets of records existed for limited periods at Rundle Noodle Bar.
Despite the fact that he reached that opinion, AFP communicated to him that in their view there was little prospect of successful prosecutions “unless our audit action provided further evidence”.
Apparently thereafter work was scaled down, pending lodgement of the various 1998 tax returns to see whether they reflected figures which were incriminating.
At some stage after 26 February 1999, Mr Kay learned from the AFP that they wanted to “terminate the matter completely and return the seized material to occupants”. However, Mr Kay continued to consider that there was evidence that tax offences had been committed.
In his statement, Mr Salter described his work as an auditor in the Special Investigations Section of the ATO. He described Mr Kay as his “team leader”. Mr Salter assisted in the execution of the search warrants in question.
On 2 September 1998, he was allocated to work on an investigation of the affairs of persons other than the accused, in order to assist the AFP in their investigation of possible tax fraud. He joined Mr Kay in inspecting and photocopying records held at AFP headquarters. He said that, “All the work I did in this case was wholly in relation to the income tax affairs of those persons”, but he also said:
.. I was working under the direction of the AFP and did not use provisions of the Income Tax Assessment Act to inspect and copy records held by AFP.
Mr Salter’s particular task was to undertake an analysis to assist in the preparation of what he describes as “preliminary T-accounts”, that is, an account being a record of funds available and funds expended, which appears to be similar to what used to be called taxation on a “betterment” basis to establish whether an individual had understated his or her taxable income.
Mr Salter confirms that once the photocopying was completed, the copies were taken to the ATO, after which stage he had little contact with AFP personnel.
Mr Salter continued to have meetings with a tax agent in an endeavour to facilitate the lodgement of 1997/1998 tax returns, but he left the Special Investigations Section in October 2000, following which the amount of time he spent on the case diminished, and he had only occasional contact with it thereafter.
The arguments
In order to understand the arguments, it is necessary to have regard to the relevant parts of s 16 of the ITAA. They are as follows:
16    Officers to observe secrecy
(1)     In this section, unless the contrary intention appears: ….
Officer means a person who is or has been appointed or employed by the Commonwealth or by a State, and who by reason of that appointment or employment, or in the course of that employment, may acquire or has acquired information respecting the affairs of any other person, disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax.
…
(2)     Subject to this section, an officer shall not either directly or indirectly, either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any information respecting the affairs of another person acquired by the officer as mentioned in the definition of officer in subsection (1).
…
(3)     An officer shall not be required to produce in Court any return, assessment or notice of assessment, or to divulge or communicate to any Court any matter or thing coming under his notice in the performance of his duties as an officer, except when it is necessary to do so for the purpose of carrying into effect the provisions of this Act or of any previous law of the Commonwealth relating to Income Tax.
(4)     …
Before the trial judge, counsel for the ATO submitted that the documents which were sought in the subpoena came “under the notice of” an officer in the performance of the officer’s duties, and that disclosure was not necessary for the purpose of “… carrying into effect the provisions of this Act or of any previous law of the Commonwealth relating to income tax”, within the meaning of s 16(3).
The argument advanced by counsel for the accused before the trial judge was that the meaning of the word “officer” in s 16(3) was as defined in s 16(1) and that it followed that the prohibition against divulging or communicating any matter or thing to a court under s 16(3) attached only to information “acquired” by the officer within the meaning of s 16(1). The documents in question did not answer to that description because, as was accepted by the trial judge, the relevant material was not obtained under the provisions of the ITAA, but was obtained by the AFP in the exercise of the powers conferred on them by a warrant issued under s 3E of the Crimes Act 1914.
The trial judge rejected the principal argument advanced on behalf of the accused, as appears from the following passage from his reasons:
[10]… once a person has become an “officer” for the purpose of the section, subsection 16(3) covers “any matter or thing coming under his notice in the performance of his duties as an officer” whether it was “information respecting the affairs of any other person, disclosed or obtained under the provisions of (the Income Tax Assessment) Act …” or otherwise.
However, the trial judge found against the Commissioner’s objection on another ground. He held:
[18]… that the words “divulge or communicate” do not extend to the production of documents to the court in answer to a subpoena, but relate to the disclosure of matters or things during the course of oral evidence.
In reaching that conclusion, he had regard to what he described as the two limbs of s 16(3).
He regarded the first limb as that which stated that officers were “not to be required to produce in court any returns, assessments or notice of assessment …”.
He then had regard to what he described as the second limb, pursuant to which officers are not to be required “to divulge, or communicate to any court any matter or thing coming under his notice in the performance of his duties as an officer …”. (My emphasis).
He commented:
[16]If the second limb of s 16(3) extends to the production of documents in answer to a subpoena then the first limb which covers the production of the Returns, Assessments and Notices of Assessment is otiose.
As to the first argument, in my view, the definition of “officer” in s 16(1) of the ITAA is no more than just that, namely, a definition. If a person complies with that definition, that person is an officer for the purposes of the section.
The nature of the status of the person and the activities conducted, or which may be conducted, by that person does, however, have an impact upon the operation of s 16(2), in that the phrase “information respecting the affairs of another person acquired by the officer” where those words appears in s 16(2), may well be confined to information respecting the affairs of another person “disclosed or obtained under the provisions of [the ITAA] … or of any previous law of the Commonwealth relating to income tax”. That conclusion may follow from the words “as mentioned in the definition of officer in subsection (1)”.
I must say that I see some difficulty with respect to the words “make a record of”. I would have thought that it was basic to the role of an officer, as defined, to make a record of information respecting the affairs of another person disclosed or obtained under the ITAA.
However, the expression “any matter or thing coming under his notice in the performance of his duties as an officer” in s 16(3) appears to be of wider import. Arguably it might extend to information which was not “disclosed or obtained” by any disclosure or obtaining of information under the ITAA or any predecessor to the ITAA. Whether or not it does, seems to me to be irrelevant in the circumstances of this case.
What do the words “disclosed or obtained under the provisions of the ITAA” mean?
Suppose a stranger to a taxpayer steals records of the taxpayer containing incriminating information which might disclose the commission of an offence against the ITAA, and simply hands it in to the ATO, who then use it to prosecute the taxpayer for an offence. I tend to think that the records handed to the ATO in such circumstances should be regarded as “disclosed or obtained” under the provisions of the ITAA.
Likewise, records obtained by the South Australian Police in an investigation of a possible offence against State law, if handed to the ATO to be considered by the ATO in relation to a possible offence against the ITAA, constitute information respecting the affairs of [another person] … disclosed or obtained under the provisions of the ITAA.
Likewise, in the circumstances of this case, when the ATO asked the AFP to hand over the documents to it, with a view to the ATO using the documents in its investigation of the question whether or not there had been or would be in the future an understatement of income, there can be no question but that they were documents “disclosed or obtained under the provisions” of the ITAA. There could have been no other warrant for the ATO to ask for the documents to be handed over.

In any event, if records answering to the description I have outlined were to be perused by an employee of the ATO in the course of his or her employment, the subject matter of the record in question would answer to the description of a “… matter or thing coming under” the employee’s notice in the performance of his or her duties as an officer within the meaning of s 16(3).
It follows from that analysis, that in my view, once the ATO comes into possession of information by whatever means, and whether due to exertions by one of its officers or not, if the information is relevant to the tax affairs of any person, it becomes subject to the secrecy provisions in s 16, whether under s 16(2) or s 16(3).
I turn to the second argument addressed by the trial judge, which turned on the question of the meaning of the words “any matter or thing coming under his notice”. The trial judge held that those words did not apply to documents as opposed to oral evidence.
The reasoning of the trial judge which led him to that conclusion appears from the following passage in his reasons:
[11]There is a further consideration. Subsection (3) has two limbs. First, officers are “not to be required to produce in court any Returns, Assessment or Notice of Assessment …”. The documents in question are not returns, Assessments or Notices of Assessment and accordingly that limb has no application to this argument.
[12]The Commissioner relies upon that limb which says that officers shall not be required “to divulge or communicate to any court any matter or thing coming under his notice in the performance of his duties as an officer…”.
[13]The distinction between a requirement to produce, which is the subject of the first limb, and a requirement not to divulge or communicate, which is the subject of the second limb, seems to acknowledge the distinction between the old subpoena duces tecum and the subpoena ad testificandum.
[14]…
[15]…
[16]If the second limb of section 16(3) extends to the production of documents in answer to a subpoena then the first limb which covers the production of the Returns, Assessments and Notices of Assessment is otiose.
[17]In my opinion, the second limb of section 16(3) should be interpreted as being complimentary [sic] to the first limb.
[18]I find that the words “divulge or communicate” do not extend to the production of documents to the court in answer to a subpoena, but relate to the disclosure of matters or things during the course of oral evidence.
With respect to the trial judge, I do not agree with that analysis.
The words “divulge or communicate to any court any matter or thing coming under his notice in the performance of his duties as an officer” are words of wide import. There is no reason to read them down so as to construe them as being applicable only to oral evidence. Certainly, there is no reason to do so simply because there is an earlier specific prohibition against production of “any return, assessment or notice of assessment”.
The construction suggested by the trial judge would give rise to an anomalous and irrational result. Such a result would be inconsistent with the obvious intent of the section to shield from the scrutiny of the court information obtained by the Commissioner in the course of the discharge by the Commissioner of his obligations under the ITAA to investigate and obtain information upon which to base an assessment of income tax payable under the ITAA.
The view I have reached is consistent with the view expressed by O’Bryan J in one of the cases referred to by the trial judge, namely R v Clarkson and Ors (No 2).[1]
[1] (1982) VR 522.
That case involved, inter alia, the issue of a subpoena during the course of a criminal trial, directed to the Deputy Commissioner of Income Tax to produce certain documents to the court.
In the course of his reasons for judgment, O’Bryan J observed:[2]
In the course of the argument it was acknowledged that sub-s (3) is the critical part of s 16 for these purposes. It excuses an officer (that is, a person who is or has been appointed or employed by the Commonwealth, and who by reason of that appointment or employment may acquire or has acquired information respecting the affairs of any other person disclosed or obtained under the provisions of this Act) from producing in court certain documents, namely, (1) any return, (2) an assessment and (3) a notice of assessment, except when it is necessary to do so for the purpose of carrying into effect the provisions of the Act.
The subpoena does not in its terms require an officer to produce any of the specified documents, so no difficulty arises there. But sub-s (3) has a second limb to it: an officer shall not be required to divulge or communicate to any court any matter or thing coming under his notice in the performance of his duties as an officer except when it is necessary to do so for the purpose of carrying into effect the provisions of the Act. The words “divulge or communicate” mean revealing either by an oral communication or by a written document something that is secret. The word “divulge” means letting out a secret. The question arises what meaning do the words “matter or thing” bear in sub (3). The word “matter” in its ordinary English meaning means a physical substance, such as a letter or anything in or containing print. The word “thing” includes objects of thought, material objects and utterances. Mr Ormiston submitted that in choosing the words “matter or thing: the legislature has used words of wide import. I agree, and quite clearly documents would be included in the expression. (my emphasis)
[2] Ibid 526-527.
The view of O’Bryan J expressed in that passage was accepted by White J in Javorski v Commissioner of Taxation:[3]
[41]… A document and the information contained in it are clearly capable of falling within the expression “any matter or thing” in s 16(3). The fact that a narrow class of documents is expressly dealt with does not, in my view, mean that all other classes of documents are impliedly excluded from the wider notion of divulging or communicating any matter or thing. In R v Clarkson (No 2),[4] O’Bryan J upheld a submission that in choosing the words “matter or thing” the legislature had deliberately used words of wide import. His Honour held that documents would clearly be included in the expression: at 527. I agree with this part of his Honour’s reasons.
[3] (2005) 216 ALR 619 at 627 [41].
[4] [1982] VR 522.
I make it clear that in my view, the secrecy provisions of s 16 extend so as to apply also to documents generated in the ATO by those officers who may have been involved in examining the documents delivered to the ATO by the AFP. I assume that such documents include summaries, audits and analyses of the seized documents. I cannot envisage that any such secondary or derivative documents could be disclosed without divulging “matters or things” coming under the notice of officers of the ATO by reason of their scrutiny of the seized documents.
In my view, the trial judge erred in ordering that the documents be produced.
The remaining question is whether this Court should intervene to correct the error, and if so, by way of an appeal or by way of the prerogative proceedings which have been instituted.
Appeal or prerogative relief?
For reasons which I will come to, in my view, the notice of appeal is incompetent.
The notice of appeal purports to have been brought pursuant to a certificate issued by the trial judge under SCR r 96A.02.
SCR r 96A is headed “Appeals from the District Court”. It is within the body of rules relating to the civil procedure of the Supreme Court.
SCR r 96A.02 reads:
96A.02(1) Unless a Judge of the District Court has certified that the proposed appeal involves:
(a)A point of law of difficulty or importance which justified it being reviewed on an interlocutory appeal; or
(b)A point of sufficient importance in the proceedings to warrant it being reviewed on an interlocutory appeal without waiting for the final judgment in the action,
any appeal against an interlocutory judgment under Section 43(2)(b) of the Act is subject to leave being obtained from the Court.
(2)Such leave or leave under Section 43(3) of the Act may be granted by a single Judge in chambers ex parte or upon such notice to the other parties as the Court may direct: …
The rule refers to an interlocutory judgment under s 43(2)(b) of the District Court Act.
Relevantly, s 43 of the District Court Act 1991 provides:
43(1) A party to an action may, in accordance with the rules of the appellate court, appeal against any judgment given in the action.
(2)The appeal lies-
(a)in the case of a judgment given by a Master or the Court constituted of a Master – to the Court constituted of a Judge;
(b)in the case of an interlocutory judgment given by a Judge – to the Supreme Court constituted of a single Judge;
(c)in any other case – to the Full Court of the Supreme Court.
(3) …
Under s 3(1) of the District Court Act, “action” is defined to mean:
… any civil or criminal proceedings in the court, including proceedings for a contempt of the court. (my emphasis)
“Judgment” is defined to mean “… a judgment, order or decision and includes an interlocutory judgment or order …”.
Section 43 of the District Court Act is within Part 7 of that Act, as is s 45. The latter section provides:
This part does not apply in respect of appeals and reservations of questions of law in criminal proceedings to which Part 11 of the Criminal Law Consolidation Act 1935 is applicable.
The only form of interlocutory appeal provided for in Part 11 of the Criminal Law Consolidation Act 1935 (“the CLCA”) is an appeal against what is defined in s 348 of the Act as an “issue antecedent to trial” which is limited to a question as to whether proceedings on an information or account of an information should be stayed on the ground that the proceedings are an abuse of process of the court.
Part 11 of the CLCA does not otherwise provide for an appeal against an interlocutory order or ruling. Its operation is confined to reservation to questions of law and appeals against conviction and sentence.
It follows that the right of appeal conferred by s 43 of the District Court Act extends to an interlocutory judgment given by a judge in the course of criminal proceedings in that court.
The ruling in question was an interlocutory judgment as defined.
But the right of appeal is expressly limited by s 43(1) to “a party to an action”. Although as I have explained, the word “action” includes criminal proceedings, the Commissioner is not a party to the criminal proceedings against the respondent, Ms Tang.
Ms Maharaj QC, who appeared for the Commissioner, attempted to surmount this difficulty by reference to authority which supports the view that, commonly, recipients of a subpoena who are not parties to the action have been given an audience to advance an objection to the subpoena, and have also been permitted to appeal an adverse ruling.
In particular, she referred to the judgment of Heydon J in Witness v Marsden and Anor.[5] That case concerned an application for leave to appeal to the Court of Appeal of New South Wales against a ruling by a judge sitting in the civil jurisdiction of that court, refusing a request for a witness whom the defendant proposed to call, to be allowed to give evidence under a pseudonym.
[5] (2000) 49 NSWLR 429.
In the course of his reasons, with which Mason P agreed, Heydon J dealt with the question whether a witness attending pursuant to a subpoena ad testificandum had sufficient interest to move that it be set aside. In considering that question, he considered the related question whether a witness dissatisfied with the outcome of an application in relation to a subpoena could exercise a right of appeal.
In the course of canvassing a number of authorities on the point, Heydon J observed:[6]
[68]The law permits non-parties to apply for leave to appeal from orders affecting them. Thus in In re Markham; Markham v Markham a potential beneficiary under a will who was not a party to administration proceedings was granted by the Court of Appeal leave to appeal despite having not been a party to the cause.
[6] Ibid at 443 [68].
The report of In re Markham does not indicate the terms of any relevant statutory provision under which the appeal was brought. The reasons for judgment occupy only three lines. In the course of argument, counsel for the applicant is reported as having stated:[7]
According to the practice before the Judicature Acts a party interested, though a not a party to the cause, could obtain leave to appeal. The Acts and rules do not contain anything bearing on the point, and it is submitted that the old practice remains …
[7] (1880) 16 Ch D 1 at 2.
Later in his judgment, Heydon J comments:[8]
[73]That it is normal, as a matter of the usual practice of the courts, for non-party recipients of subpoenas to be heard in objection to them and to appeal if dissatisfied receives powerful negative support from Rochfort v Trade Practices Commission.[9] That was part of hard-fought litigation – what is known as the first Tradestock case – in which one would have expected any available point to have been taken. Rochfort was the employee of an unincorporated association who carried out work for a member of that association, which was also an unincorporated association. He received a subpoena duces tecum. He objected on the grounds that the documents were not in his personal possession but that of the second unincorporated association, its members and executive. Bowen CJ ordered him to produce certain documents. Rochfort and three parties to the proceedings appealed against that order to the Full Federal Court. Rochfort appears to have been the only active appellant. The appeal was dismissed: Rochfort v Trade Practices Commission.[10] Rochfort (but no other party) then obtained special leave to appeal to the High Court of Australia. The appeal was dismissed, but no point was taken there or in the Full Federal Court about him lacking standing or indeed about the supposed absence of any order.
[8] (2000) 49 NSWLR 429 at 445 [73].
[9] (1981) 53 FLR 364.
[10] (1982) 153 CLR 134.
I have had regard to the report of the decision of the Full Federal Court in Rochfort’s case. There is no reference in that report to the statutory provisions pursuant to which the appeal was brought. However, it seems clear enough that the appeal must have been brought pursuant to the right of appeal given under s 24 of the Federal Court of Australia Act 1976. That section simply provides that the court has jurisdiction to hear and determine “appeals from judgments of the Court constituted by a single judge”.[11] The section does not refer to parties or expressly limit the right of appeal to parties.
[11] Section 24(1)(a).
It is in that context that the remarks made by Heydon J and the cases to which he refers must be understood.
A right of appeal is necessarily a right conferred by statute. There is no right of appeal at common law.
In this case, the right of appeal is expressly limited to parties. Authorities dealing with rights of appeal where there is no such limitation are not relevant to determine the scope of the right of appeal conferred under s 43 of the District Court Act.
Giving the words their natural meaning, the right of appeal under that Act is confined to parties. As the Commissioner is not a party to the District Court proceedings, the Commissioner has no right of appeal against the ruling in question.
I have not overlooked the argument advanced by Ms Maharaj QC based on the fact that pursuant to s 43(4), the right of appeal is expressed to extend to “a legal practitioner, witness or other person against whom an order under s 42 is made”.
Section 42 confers on the court a power to award costs. The fact that the right of appeal under s 43(4) is extended to persons who may be made the subject of a costs order who may otherwise not be parties to the action, adds force to and does not detract from the construction which I have reached as to the scope of s 43(1).
There is no doubt, however, that the Commissioner has standing to issue the proceedings for judicial review. No argument to the contrary was advanced by Ms Fuller, counsel for the second respondent.[12]
[12] The first respondent did not appear but indicated that it would abide the decision of the court.
For the reasons which I have given, in my view, the trial judge made an error of law, more particularly in his construction and application of the relevant provisions of s 16 of the ITAA.
The availability of relief pursuant to an application for judicial review in such circumstances turns upon the sometimes difficult question as to whether or not such an error amounts to jurisdictional error or an error within jurisdiction.
The commonly recognised starting point for a discussion of this topic is the judgment of the High Court in Craig v South Australia. In the course of their joint judgment in that case, Brennan, Deane, Toohey, Gaudron and McHugh JJ observed:[13]
An inferior Court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limit of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior Court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.
[13] (1995) 184 CLR 163 at 177.
More recently, Craig’s case was the subject of comment by Hayne J in the decision of the High Court in Re Refugee Review Tribunal; Ex parte Aala:[14]
In deciding whether writs of prohibition or certiorari (and analogous forms of relief) should be granted, a distinction is drawn between jurisdictional error and error within jurisdiction. This Court has not accepted that this distinction should be discarded (Craig v South Australia. As was noted in Craig v South Australia (at 177-8), that distinction may be difficult to draw. The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.
[14] (2000) 204 CLR 82 at 141 [163].
The particular jurisdiction being exercised by Judge Clayton involved the need to determine whether, on a proper application of s 16(3) of the ITAA, the documents, production of which were the subject of the Commissioner’s objection, were or were not within the scope of the prohibition against divulging or communicating to the court “any matter or thing coming under” the notice of an officer in the performance of his duties.
In addressing that question, it was necessary for the trial judge to define the scope of the prohibition. He did so erroneously. He held that it applied only to oral evidence given by the officer, not to the production by an officer of documents.

Within the meaning of the passage from the judgment of the High Court in Craig which I have set out above, the trial judge misapprehended the nature or limit of his functions or powers under s 16(3). In doing so, he committed an error which should properly be characterised as jurisdictional error.
It is, therefore, reviewable in the proceedings for judicial review.
The final question is whether, given that prerogative relief is discretionary, the discretion should be exercised in favour of the application.
This Court has said on many occasions that the circumstances will be rare in which it will be proper to interrupt the course of criminal proceedings by entertaining applications for judicial review of rulings on points of law.
In Polley v Bright and Anor, I said:[15]
It is true that the supervisory jurisdiction of this Court confers jurisdiction in appropriate cases to grant relief by way of judicial review, even though to do so might hold up the progress of criminal proceedings in courts below. But a long line of authority makes it clear that the jurisdiction should only be invoked on rare occasions. In Clayton v Ralphs and Anor,[16] Jacobs J said:
In principal the administration of the criminal law should be left to the criminal courts.
[15] (1995) 79 A Crim R 562 at 565-6. See also Dunn v District Court of South Australia, Perry J, 23 August 1996, judgment No S5787 (unreported); Haydon v Magistrates Court of South Australia, Williams J, judgment No [2000] SASC 449; Re Rozenes, Director of Public Prosecutions and Anor; Ex parte Burd and Ors (1994) 120 ALR 193; John Weeks Pty Ltd v Harris (1990) 49 A Crim R 421 and Dimitropoulos v District Court of South Australia (1998) 199 LSJS 7.
[16] (1987) 45 SASR 347 at 365.
However, from time to time there are exceptions, when it is in the interests of justice to yield to an application for judicial review, even though the making of an order will, to a degree, interrupt the course of criminal proceedings.
Not without some hesitation, I think that this is a case where the relief should be granted. The point at issue is important, and once the documents are released, the contravention of s 16 of the ITAA will be irreversible. The secrecy provisions of the ITAA must be enforced wherever breach of them is threatened, in the interests of maintaining public confidence in the protection of personal information gathered by the Commissioner.
I make it clear that this decision should not be regarded as any sort of signal that the strictures which find expression in the authorities against this Court intervening in the progress of criminal proceedings by way of judicial review, are in any way to be relaxed.
Conclusion
I order:
1.That the appeal be dismissed.
2.That on the application for judicial review there be an order:
(a) quashing the ruling of Judge Clayton made on 24 February 2006;
(b) substituting therefore an order upholding the objection of the Commissioner of Taxation to the production of the documents sought pursuant to the subpoena in question, save for those which have been produced voluntarily by the Commissioner.
I will hear the parties as to costs.