Croker v Perks

[1999] NSWSC 296

CITATION:	Croker v Perks [1999] NSWSC 296
CURRENT JURISDICTION:	Administrative Law Division
FILE NUMBER(S):	30003/99
HEARING DATE(S):	1 April 1999
JUDGMENT DATE:	1 April 1999
PARTIES :	Clayton Robert Croker (Planitff/Applicant) Deputy Commissioner of Taxation (Respondent in Applicant's Notice of Motion)
JUDGMENT OF:	Dunford J

COUNSEL :
SOLICITORS:	Plaintiff - in person Respondent - Mr MJ Donohoe - Australian Government Solicitor
CATCHWORDS:	PROCEDURE - subpoeana for production; income tax records of thrid party,
ACTS CITED:	Income Tax Assessment Act 1936, s 16
CASES CITED:	Norper Investments Pty Ltd v Deputy Federal Commissioner for Taxation (1977) 77 ATC 4211 Krew v Federal Commissioner for Taxation (1971) 71 ATC 4091 Hutchins v Federal Commissioner for Taxation (1986), 86 ATC 4549 Nestle Australia Limited v Federal Commissioner for Taxation (1986) 86 ATC 4499.
DECISION:	See para 10.

THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISION
DUNFORD J
1 APRIL 1999
30003/99 - Clayton Robert CROKER v Edward PERKS & Anor
JUDGMENT

1 HIS HONOUR: In these proceedings the plaintiff, Clayton Robert Croker, seeks to set aside orders made in the Residential Tenancies Tribunal on 4 December 1998 dismissing his application before that Tribunal for monetary compensation for an allegedly wrongful eviction from premises of which he claimed to be a tenant under a residential tenancy agreement and the return of some property said to belong to him.
2 The grounds on which the application was dismissed was that the Tribunal concluded that the premises operated as a boarding house and consequently it had no jurisdiction.
3 In preparation for the hearing of the proceedings the plaintiff issued a subpoena addressed to the Australian Taxation Office seeking production of the following:
A. Taxation records showing the status of the taxation applied to the premises of 33 Cooper Street, Surry Hills, Sydney 2010 (low cost accommodation tax etc).

B. Taxation records showing the employment of employees at 33 Cooper Street, Surrey Hills, Sydney 2010.

4 The subpoena has not been complied with and the plaintiff subsequently filed a Notice of Motion seeking an order that the subpoena issued to the Australian Taxation Department be complied with in full. That Notice of Motion was filed on 3 March 1999.
5 In the meantime, the Deputy Commissioner of Taxation filed a Notice of Motion on 25 February 1999 seeking an order that the subpoena be set aside and other relief.
6 Section 16 (3) of the Income Tax Assessment Act 1936 provides that 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 that Act or of any previous law of the Commonwealth relating to Income Tax.
7 These proceedings do not involve the carrying into effect of the provisions of the Income Tax Assessment Act 1936 or any previous law of the Commonwealth relating to Income Tax and consequently the exception does not apply. It follows that the Commissioner or anyone employed by him cannot be required to produce to this Court the documents the subject of the subpoena.
8 Mr Croker, who has appeared in person, has referred me to a number of cases where it has been held that the exception referred to in the section applied, including Norper Investments Pty Ltd v Deputy Federal Commissioner for Taxation (1977) 77 ATC 4211, Krew v Federal Commissioner for Taxation (1971) 71 ATC 4091, Hutchins v Federal Commissioner for Taxation (1986), 86 ATC 4549, Nestle Australia Limited v Federal Commissioner for Taxation (1986) 86 ATC 4499. Those cases, however, were all cases where the issue was either the liability of a party for tax or the enforcement of such liability. As I have already said, these proceedings do not relate to carrying into effect the purposes of this Act or any other Commonwealth Act relating to income tax and consequently the exception does not apply.
9 Mr Croker has also submitted he is entitled to the production of the documents under the Freedom of Information Act (Cth) 1982 but he has not made an application under that Act and if he does it will no doubt be dealt with on its merits, although I anticipate that the application will be refused pursuant to the exception provided in that Act, s 38(1) and Schedule 3 which in turn refers to s 16 (2) of the Income Tax Assessment Act.
10 For these reasons the plaintiff's Notice to Produce is dismissed and on the Notice of Motion filed by the Deputy Commissioner for Taxation I make order 1 as asked. I order the plaintiff to pay the costs of both motions.

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Last Modified: 04/14/1999