Law Institute of Victoria Limited v Deputy Commissioner of Taxation
[2009] VSC 55
•26 February 2009
fkef
IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
No. 10547 of 2008
| LAW INSTITUTE OF VICTORIA LIMITED | Plaintiff |
| and | |
| DEPUTY COMMISSIONER OF TAXATION | Defendant |
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JUDGE: | PAGONE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 February 2009 | |
DATE OF JUDGMENT: | 26 February 2009 | |
CASE MAY BE CITED AS: | Law Institute of Victoria Ltd v Deputy Commissioner of Taxation | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 55 | |
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PRACTICE AND PROCEDURE – Public interest immunity – Law Institute of Victoria – Documents relating to affairs of solicitor – Whether Federal Commissioner of Taxation entitled to access to documents – Income Tax Assessment Act 1936 (Cth), s 264 – Constitutional Law – Inconsistency – Legal Profession Act 2004 (Vic), s 6.4.5.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Riordan SC and Mr J Tracey | J. Barravecchio |
| For the Defendant | Mr P J Hanks QC and Ms F McKenzie | Australian Government Solicitor |
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HIS HONOUR:
The Law Institute of Victoria Ltd (“LIV”) seeks a declaration about whether its compliance with a notice dated 15 September 2008 (“the Notice”) given by the Deputy Commissioner of Taxation (“the Commissioner”) under s 264(1)(b) of the Income Tax Assessment Act 1936 (Cth) (“the 1936 Act”) will contravene s 6.4.5 of the Legal Profession Act 2004 (Vic) (“the LPA”). The Notice requires the LIV to produce certain “records” relating to Mr Kephala, a solicitor. Section 264(1)(b) of the 1936 Act authorises the Commissioner, by notice in writing, to require any person to produce all books, documents or other papers whatever in the person’s custody or under the person’s control relating to any other person’s income or assessment. The LIV has not produced to the Commissioner the records relating to Mr Kephala maintaining that to do so would be in breach of s 6.4.5 of the LPA.
The Commissioner maintained that the LIV is required to comply with the Notice irrespective of s 6.4.5 of the LPA. The 1936 Act is Commonwealth legislation whilst the LPA is State legislation. If there is an inconsistency between the two, it is the former which prevails and the latter is invalid to the extent of the inconsistency.[1] The Commissioner’s case is essentially that s 6.4.5 of the LPA “cannot operate to diminish the force and effect” of s 264. In a letter from Bronwyn Simmonds, Assistant Commissioner, dated 2 December 2008 to Mr J Barravecchio at the LIV, enclosing a submission for the Australian Taxation Office (“the ATO”), the LIV was requested to note “that the ATO clearly articulates the paramountcy of section 264” and “[a]ccordingly” that the LIV was to provide the documents sought by the Notice. The submissions referred to in that letter made no reference to the operation of s 264 being subject to the doctrine of public interest immunity and appeared simply to assume that a consequence of the operation of s 264 of the 1936 Act prevailing over s 6.4.5 of the LPA was inevitably that the documents sought by the Notice had to be provided to the Commissioner.
[1]Commonwealth of Australia Constitution Act 1900, s 109.
Is there an inconsistency between the operation of the Commonwealth and State provisions rendering the latter invalid (in the sense of being “inoperative”[2])? Section 264 of the 1936 Act confers upon the Commissioner the right, power or authority to “require” any person to produce documents in the person’s possession relating to another person’s income or assessment. For these purposes a “person” upon whom the obligation can be imposed includes a corporation[3] such as the LIV. The receipt of the Notice by the LIV has placed it under an obligation to comply under Commonwealth law.[4] Section 6.4.3 of the LPA, a State Act, prevents the LIV from disclosing the information sought under the Notice. The relevant inconsistency between the two provisions was described on behalf of the Commissioner in various ways: that obedience to the State provision would involve disobedience to the Commonwealth provision and vice versa; that the State law purports to take away a right, power or authority conferred upon the Commissioner by the Commonwealth law; and that the State law applied according to its terms would alter, impair or detract from the operation under s 264 of the Commissioner’s exercise of power thereby creating an “operational inconsistency” between the two provisions.[5] The clash between the operation of these two provisions was said not to be capable of reconciliation by reasoning that the more general provisions of the Commonwealth legislation did not cover the more specific field dealt with by the State legislation.[6]
[2]Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557; Butler v Attorney-General (Vic) (1961) 106 CLR 268.
[3]Income Tax Assessment Act 1936, s 6(1), definition of “person”.
[4]See also Taxation Administration Act 1953, ss 8C, 8D, 8E and 8ZF.
[5]Commonwealth v Western Australia (1999) 196 CLR 392, 417, 439-440; see also Blackley v Devondale (Cream) (Vic) Pty Ltd (1968) 117 CLR 253; Miller v Miller (1978) 141 CLR 269; Telstra Corporation v Worthing (1999) 197 CLR 61.
[6]Compare with Apla Limited v Legal Services Commissioner (NSW) (2005) 224 CLR 322; De Pardo v Legal Practitioners Complaint Committee (2000) 97 FCR 575.
The Commissioner’s reliance upon an inconsistency between Commonwealth and State laws is, in my view, misconceived. The fundamental question posed in this case is whether the Commissioner, in reliance upon s 264 of the 1936 Act, can require production of documents if they attract public interest immunity. Any invalidation of s 6.4.5 of the LPA effected by s 109 of the Constitution would (if relevant) not alter the nature of the documents sought, the basis and capacity by which the LIV came to hold them, the functions exercised by the LIV in connection with those documents and the balance between the competing public interests in maintaining confidentiality of the documents in the LIV’s possession (on the one hand) and in the Commissioner having access to them (on the other hand). In other words the issues raised by this proceeding depend upon a consideration of whether s 264 of the 1936 Act requires production of documents to which public interest immunity applies. It may, therefore, be accepted as trite law that s 6.4.5 of the LPA is invalid to the extent of any inconsistency with the operation of the Notice issued under s 264 of the 1936 Act: the extent of invalidity occasioned by s 109 of the Constitution will make s 6.4.5 of the LPA inoperative as the effective authority for the LIV to refuse production of the documents sought by the Notice but the invalidity will not necessarily compel production of a document if otherwise immune.
The LIV contended that it need not comply with the Notice because public interest immunity does attach to the documents. The Commissioner accepted in the proceeding before me that s 264 of the 1936 Act is to be read as subject to the principles enunciated in Middendorp Electric Co Pty Ltd v Law Institute of Victoria[7] but contended that the LIV has not established a case of those principles applying to the documents sought by the Notice. The Commissioner also accepted that the doctrine of public interest immunity applies to the operation of s 264 by reason of the decision in Jacobsen v Rogers.[8]
[7][1994] 2 VR 313.
[8](1995) 182 CLR 572.
Middendorp concerned the operation of s 263 of the 1936 Act, a provision which gives to the Commissioner full and free access to all buildings, places, books, documents and other papers for any of the purposes of the Act. In that case the LIV (as then constituted) had documents under its control relating to an enquiry into a complaint by Middendorp Electric Co Pty Ltd (‘Middendorp”) against its solicitor. The Commissioner had sought access to the documents relying upon s 263 of the 1936 Act and Middendorp had brought proceedings against the LIV seeking a declaration that the documents were immune from production on public interest grounds.
In Middendorp Nathan J held that the doctrine of public interest immunity applied as against s 263 of the 1936 Act. His Honour reviewed the extent to which s 263 had been held to be subject to the operation of legal professional privilege and concluded that the line of reasoning in those cases was “just as compelling in relation to the doctrine of public interest immunity”.[9] In Jacobsen v Rogers[10] the majority of the High Court held that the approach which had been adopted by the Court in Baker v Campbell[11] meant that it was “open to the Crown to resist […] seizure under a s 10 search warrant of documents to which public interest immunity attaches”.[12] For present purposes the Commissioner accepted (in my view, correctly) that a search warrant under s 10 of the Crimes Act 1914 (Cth) may be seen as analogous to a notice under s 264 of the 1936 Act. In any event, the Commissioner concedes, in my view correctly, that the exercise of power under s 264 of the 1936 Act is subject to the principle of public interest immunity.[13]
[9][1994] 2 VR 313, 320 (Nathan J).
[10](1995) 182 CLR 572.
[11](1983) 153 CLR 52.
[12](1995) 182 CLR 572, 589 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ).
[13]See also Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543, 553 (Gleeson CJ, Gaudron, Gummow, and Hayne JJ), 562-3 (McHugh J).
The general rule concerning the application of public interest immunity was enunciated by Gibbs ACJ in Sankey v Whitlam[14] where his Honour said:
[14](1978) 142 CLR 1.
The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer as follows:
There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.
It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies. [15] [footnotes omitted]
In applying these principles to any given document it will always be necessary to ask whether the particular document sufficiently attracts the public interest against disclosure for the immunity to be invoked. That will ordinarily require a consideration of the document and its characteristics to determine whether the doctrine is attracted by the information in the document,[16] or by the class of documents to which it belongs.[17]
[15]Ibid, 38-9.
[16]Royal Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22, 34 (Maxwell P).
[17]Sankey v Whitlam (1978) 142 CLR 1, 39 (Gibbs ACJ).
The Court’s duty is ultimately to “weigh the one competing aspect of the public interest against the other, and decide where the balance lies”[18] and that may require the Court to consider the circumstances and extent of disclosure.[19] In some instances the immunity may be attracted to protect the basis upon which information was first given to the person from whom the disclosure is sought, as may be seen in Middendorp and Jacobsen v Rogers. In the latter case the High Court said, with respect to search warrants, that the principle “does not appear to depend upon the encouragement of candour but rather upon the consideration that the public interest is best served by preserving the basis upon which the information was given”.[20] In Middendorp the principle was held to apply to whistle blowers[21] as against the Commissioner’s exercise of statutory powers of investigation.
[18]Ibid.
[19]See Law Institute of Victoria v Irving [1990] VR 429, 437 (Murphy, Gray and Beach JJ).
[20](1995) 182 CLR 572, 590 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ).
[21][1994] 2 VR 313, 323 (Nathan J).
The mere fact that the information may be held by the LIV, however, is not sufficient of itself to attract public interest immunity. The LIV is undoubtedly the repository of important statutory powers in the regulation of the legal profession for the benefit of the public. In that respect it is like very many other regulatory bodies in a great number of areas of human activity where the free flow of reliable information to the regulator is essential to proper regulation. However, whether the doctrine of public interest immunity can be invoked does not depend upon the identity of the person with possession of the documents or of the information sought but, rather, upon a careful consideration of all facts bearing relevantly, admissibly and probatively upon the competing public interests and upon the weighing of them against each other. Amongst those factors will be the function performed by the person or body receiving the information, the basis upon which the information was given to that person or body (including any statutory compulsion on the person or body receiving that information to observe confidentiality[22]), the identity and circumstances of the person seeking disclosure of the information, the use to which that person may put the information if obtained and, fundamentally, whether the public interest in protecting the information outweighs the public interest in its disclosure.
[22]See Coonan v Richardson [1947] QWN 19; Sankey v Whitlam (1978) 142 CLR 1, 42 (Gibbs ACJ).
The need to balance competing considerations requires “a precise identification of the public interest which is invoked”[23] against disclosure in the context of considering both its importance as well as “that against which it must be measured”.[24] In this case the public interest invoked by the LIV is that connected with the statutory confidentiality imposed upon the LIV in exercising the functions delegated to it by the Legal Services Board relating to the issuing, refusing, cancelling and suspending of practising certificates and related functions, including assisting applicants for practising certificates. The particular public interest invoked by the LIV is that declared by the Victorian Parliament in s 6.4.5 of the LPA, namely, to keep confidential the information obtained by the LIV. The documents sought from the LIV pursuant to the Notice were acquired by the LIV in the performance of its functions in the regulation of the legal profession as delegated by the Legal Services Board under the LPA. The importance of the LIV’s statutory duties, and in particular, of the public interest in the confidentiality declared by the parliament, are such that public interest immunity may potentially be claimed in respect of some documents.[25] In Law Institute of Victoria v Irving[26] the Full Court said:
The institute is a corporate entity charged with the performance of statutory duties. Those statutory duties include regulating the behaviour of solicitors, ensuring that only qualified persons are permitted to practise as solicitors, protecting moneys held by solicitors on behalf of members of the public, administering the Solicitors Guarantee Fund from which payments can be made to members of the public who have suffered at the hands of defaulting solicitors, taking appropriate proceedings against solicitors guilty of misconduct to ensure they cause no further loss to members of the public, ensuring that solicitors are insured against liability in respect of their own negligent conduct and generally protecting the reputation of the legal profession.
In our opinion, all those duties can properly be said to be exercisable in the public interest. But can it be said that production of the documents in question will be injurious to that public interest?
The substantive argument advanced on behalf of the institute in this regard was that there is a real risk that if material gathered by the institute in the course of its inquiry into Skinner's affairs and its audit of his trust account is disclosed, it will inhibit the institute's conduct of inquiries hereafter in that persons (including accountants and inspectors) who might otherwise be prepared to give information to the institute in confidence will no longer do so for fear that their identity will be disclosed. Expressed another way, it is said that the public interest immunity which protects the identity of informants in public prosecutions should be extended to protect from disclosure information given to the institute relating to the affairs of solicitors. Whilst we agree that there is much force in the proposition that as a general rule the names of informants who have given information to the institute in confidence should not be disclosed, we consider there is no warrant for the much wider proposition that information provided by such informants should not be disclosed during the course of litigation in respect of which it is of relevance, let alone documentation bearing upon the very issues the court will be required to determine in that litigation. It is to be remembered that disclosure pursuant to the process of discovery is not disclosure to the world at large, because the party obtaining information through discovery is not able to make use of the information and documents thus acquired otherwise than for the purposes of the litigation: see Home Office v Hannan (sic) [1983] 1 AC 280. There is no evidence to suggest that any informant in the present case gave information to the institute on any undertaking or understanding that his or her name would not be revealed. [27]
From this passage a number of conclusions may be drawn. The first is, of course, that the statutory duties being discharged by the LIV are of public importance and significance. That carries with it the conclusion that the LIV may, where appropriate, rely upon public interest immunity to prevent production of documents. Another conclusion to be drawn is that the mere fact that documents are in the possession of the LIV will not be sufficient to enable a claim of public interest immunity to succeed.[28] In Irving the claim failed because the production of the documents in question was not injurious to the public interest provided that the identity of informants was not disclosed. In that case it was considered significant that any disclosure would not be to the world at large being subject to the implied undertaking that disclosure would be used for the limited purposes of litigation and not otherwise.[29] In the case before me it is relevant as a factor in favour of disclosure[30] that the information is being sought by the Commissioner whose receipt of the documents would be subject to stringent secrecy requirements in s 16 of the 1936 Act.[31] It is also relevant that the Victorian parliament has expressly declared the public interest in the maintenance of confidence by the LIV through s 6.4.5: that is not to say that the LIV may refuse disclosure by force or operation of s 6.4.5 but, rather, that the public interest expressly declared through that provision is a factor relevant to the operation of s 264 of the 1936 Act.
[23]JD Heydon Cross on Evidence (7th Ed, 2004), 885.
[24]Ibid, 896 [27175]; Sankey v Whitlam (1978) 142 CLR 1.
[25]Law Institute of Victoria v Irving [1990] VR 429; Finch v Grieve (1991) 22 NSWLR 578; Buckley v Law Society (No 2) [1984] 3 All ER 313; Borg v Barnes (1987) 10 NSWLR 734; Legal Services Commission v Trotter (1990) 54 SASR 74.
[26][1990] VR 429.
[27]Ibid, 437 (Murphy, Gray and Beach JJ).
[28]See also Goldberg v Ng (1994) 33 NSWLR 639.
[29][1990] VR 429, 437 (Murphy, Gray and Beach JJ) citing Home Office v Harman [1983] 1 AC 280.
[30]JD Heydon Cross on Evidence (7th Ed, 2004), 896 [27180], Coonan v Richardson [1947] QWN 19.
[31]See also Taxation Administration Act 1953 (Cth), s 3C.
The particular documents sought by the Commissioner pursuant to the Notice are described as follows:
1.Records showing the history of Mr Kephala’s practise in Victoria, including dates on which he held a practising certificate and the nature of the certificate such as whether he was the principal or an employee.
2.Records of any audit conducted in respect of Mr Kephala’s trust accounts and the errors/discrepancies revealed.
3.Records in respect of the cessation of Mr Kephala’s registration as a practising lawyer, including documents stating Mr Kephala’s election to not renew his practising certificate; or notification of his ineligibility; or notification of the requirement for investigations to be conducted before it could be renewed.
The documents in the LIV’s possession falling within this description have not been filed in Court for my examination but an affidavit sworn by Mr Barravecchio on 12 February 2009 on behalf of the LIV says that they “may be characterised as follows”:
a.Certificate(s) issued pursuant to section 7.2.5(1) of the Legal Profession Act 2004;
b.Documents and correspondence from LIV to Mr Kephala and related matters concerning practising certificates application;
c.Correspondence, file notes and emails about trust account matters and lodging requirements of audit reports and related issues;
d.Trust account statements, auditor’s reports, correspondence from trust account auditor to the LIV and correspondence to the LIV from Mr Kephala about his appointment of a particular trust account auditor;
e.A list of solicitors who have failed to lodge audit reports for the year ended 31/10/2001;
f.Records of contributions to professional indemnity insurance by Mr Kephala and others and an application for professional indemnity insurance funding;
g.Information about NMK Lawyers, Mr Kephala’s firm (including change of address notifications);
h.Correspondence, applications to the Legal Practice Board relating to employee solicitors of NMK Lawyers and related (insurance) matters;
i.Invoices and details for contributions to the Fidelity Fund by Mr Kephala, and contributions to the Solicitors’ Guarantee Fund by another firm in respect of its employee solicitors (including Mr Kephala);
j.LIV firm listing details and correspondence sent to Mr Kephala and received from him (LIV Diary firm listings);
k.Practising history of Mr Kephala and related issues.
It is not clear from the LIV’s description how the documents fall within the description of those sought by the Notice, nor, however, does the LIV’s description provide a secure foundation upon which to uphold a claim of public interest immunity in respect of any particular document or category.
Counsel for the Commissioner contended that the documents in the LIV’s possession in this case are unlike those in Middendorp because none of the documents described by the LIV seem to require protection of informers or “whistle blowers” such as had been the case in Middendorp.[32] It is nonetheless possible that some of the documents in the categories described by the LIV may attract the doctrine of public interest immunity notwithstanding that they were not provided by whistleblowers, or that they were (or some were) provided pursuant to a duty to provide them to the LIV, or that the receipt of any document by the Commissioner would be subject to the secrecy provisions in s 16. Public interest immunity is not restricted to the protection from disclosure of the identity of whistleblowers or the information which they may give. The information in the LIV’s possession may attract the public interest immunity for any number of reasons. The documents came into possession of the LIV subject to a statutory compulsion on the LIV to observe confidentiality. In that respect, the LIV is subject to constraint from divulging that material to third parties similar to that on the Commissioner under s 16 of the 1936 Act.[33] The public interest against disclosure, even to the Commissioner, is not absent merely because the LIV may have obtained the information under compulsion or by reason of a duty on the part of another in providing it to the LIV.[34] That the information held by the LIV was not volunteered in this case by a whistleblower may be a relevant circumstance amongst others in considering where the balance lies, but is not the only, or in this case the determining, factor. Similarly, the mere fact that the information is sought by the Commissioner, who is subject to a secrecy provision in the 1936 Act, is not sufficient to determine the matter in his favour in this case any more than in Middendorp.
[32]Middendorp Electric Co Pty Ltd v Law Institute of Victoria [1994] 2 VR 313; see also Sankey v Whitlam (1978) 142 CLR 1; Alister v R (1984) 154 CLR 404; D v National Society for the Prevention of Cruelty to Children [1978] AC 171; Royal Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22.
[33]Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1; Federal Commissioner of Taxation v Nestle Australia Ltd (1986) 86 ATC 4760.
[34]See Kanthal Australia Pty Ltd v Minister for Industry, Technology and Commerce (1987) 14 FCR 90; Duncan v Cammell Laird & Co Ltd [1942] AC 624, 629-43 (Simon LC); Lord v Commissioner of A.F.P. (1997) 74 FCR 61.
Some of the documents may attract the immunity whilst others might not. It is difficult to see, for example, how public interest immunity could apply to any document in the possession of the LIV which would not have attracted the doctrine in the possession of the person from whom it had come to the LIV. Thus, for example, documents taken by the LIV from Mr Kephala would not in my view attract the privilege merely because they were in the possession of the LIV pursuant to a statutory function if the documents would not have attracted the immunity in the hands of Mr Kephala. On the other hand, the doctrine is capable of being attracted to protect from disclosure, even as against the Commissioner, information that might be provided by an informant. That, in my view, is because the public interest in encouraging informants in the discharge of the functions of the LIV extends to the encouragement of disclosure to the LIV of information which an informant would not wish to have disclosed to the Commissioner. The important public interest discharged by the LIV should not be hindered or impaired by the possibility that an informant might be unwilling to volunteer information for fear that it may be used for a wholly different purpose if given to the Commissioner. Similarly, in my view, documents created by or for the LIV in the course of discharging its statutory function may attract the doctrine of public interest immunity. In that regard it is difficult to see how a balancing of the competing interests would necessarily favour the Commissioner’s access to secondary information generated by or for the LIV itself in the exercise of its duty which might, perhaps, be capable of a creation independently by the Commissioner from the source data otherwise available to him. It is also conceivable that some of the information in the documents relate both to the tax affairs of Mr Kephala and to the tax affairs of others. In such circumstances there are, in my view, difficult and competing considerations to evaluate and balance against each other in deciding whether the doctrine of public interest immunity prevents disclosure of the documents sought.[35] Such information given to the LIV may not be volunteered in the same way as by a whistle blower but may nonetheless be given in circumstances where their confidence, privacy and potential privilege[36] from disclosure might reasonably have been expected.[37] In such cases I do not think it a sufficient answer in favour of disclosure that the Commissioner would either necessarily receive the information pursuant to a statutory duty to keep it secret or that the Commissioner could otherwise obtain the information from the person who had given it to the LIV or from some other source.
[35]Alister v R (1984) 154 CLR 404; (1984) 154 CLR 469.
[36]For example any legal professional privilege attaching to documents which had not been waived: see Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403.
[37]See: Consolidated Press Holdings Ltd v Federal Commissioner of Taxation (1995) 95 ATC 417; Kanthal Australia Pty Ltd v Minister for Industry, Technology and Commerce (1987) 14 FCR 90; Duncan v Cammell Laird & Co Ltd [1942] AC 624, 629-643 (Simon LC).
The analogy urged upon me by senior counsel for the Commissioner between the Commissioner’s duty to keep information secret under s 16 of the 1936 Act and the implied undertaking referred to in Irving[38] falls short of sufficient equivalence: the implied undertaking limits the use of information for the purposes of the litigation in which it is obtained, whilst s 16 does not on its face prevent the Commissioner using information obtained for any statutory purpose available to him, or duty imposed upon him, once the information is in his possession. As I observed in Griffiths & Beerens v Duggan (No 2),[39] a government regulator who comes by documents in the course of litigation may, perhaps, receive the information with a duty imposed by law or statute to use the information such that the undertaking may not be capable of being implied; that is to say, that the duties upon receipt of information received in the course of litigation may be such that the implication against use cannot be made. In any event, the duty in s 16 to keep information secret is not expressed to fetter the Commissioner’s use of information in the discharge of his duty.[40]
[38][1990] VR 429, 437 (Murphy, Gray and Beach JJ).
[39][2008] VSC 230, [11].
[40]Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1, 6; Federal Commissioner of Taxation v Nestle Australia Ltd (1986) 86 ATC 4760, 4764; cf Consolidated Press Holdings Ltd v Federal Commissioner of Taxation (1995) 95 ATC 4178 in which Whitlam J held that the taxpayer had a legitimate and reasonable expectation that information provided would not be communicated to others without an opportunity to be heard.
The obstacle facing the LIV, however, is that the LIV’s description of the documents said to fall within the terms of the Notice do not make out the pre-conditions necessary to invoke the doctrine. That is no doubt due to the way in which the case for the LIV was conducted: namely, that public interest immunity could be relied upon for all documents which the LIV had in its possession arising from its governmental function and statutory duties irrespective of the particular categories of the documents themselves or the information in them. I cannot accept that submission in those terms.
On the other hand the balancing of competing interest requires a consideration of all of the relevant, probative and admissible factors bearing upon the task, including a consideration of whether the public interest is best served by disclosure of the documents to the Commissioner. In that regard, however, the Commissioner has provided no material to assist the Court in determining whether disclosure to him serves the public interest. The workings of the LIV, or of a government department, or any other person or body discharging important public functions, should not be interfered with lightly. The exercise of a statutory power of compulsion (whether by the Commissioner or other repository of such a power) against the LIV or other body or person discharging public duties and functions to provide information, has the capacity to interfere with, and potentially damage, the discharge of those duties and functions. There may be circumstances when, and there may be documents which, the Commissioner may demand production from a person or body exercising public duties and functions otherwise attracting public interest immunity, but the Court’s duty to balance competing public interests requires more than the Commissioner’s assertion of a claim: a Court needs to be satisfied that the potential interference and damage to the countervailing public interest is what the balance of competing interests requires.
Amongst the documents sought by the Notice, for example, are records of “any audit conducted” in respect of Mr Kephala’s trust account, and amongst the documents said to come within the terms of the Notice are “auditor’s reports” and correspondence from trust account auditor “to the LIV”. The Notice, therefore, seeks and, if complied with according to its terms, would appear to have produced to the Commissioner not only the documents of a taxpayer (Mr Kephala) or of third parties, but also those created solely by or for the LIV in the exercise of its statutory duties and function. It may be one thing for the Commissioner to seek by compulsion from the LIV the documents either of the taxpayer whose affairs are the subject of an inquiry by both the LIV and the Commissioner or of or from third parties to the LIV, but it is a different matter, and different considerations arise, when what the Commissioner seeks under compulsion are the documents of the body undertaking and discharging its statutory duty and function and which came into existence in the exercise of that duty and function. What relevance (if any) the LIV’s work, analysis, conclusions, opinions, observations, notes or comments may have to the Commissioner’s investigation into Mr Kephala’s tax affairs is not a matter for me, but the potential hindrance and damage to the LIV’s work by the Commissioner’s claim for them is a matter capable of attracting public interest immunity.
In this case the Commissioner contended that the LIV’s proceeding must fail because it is for the LIV to substantiate its claim and that it has failed to do so on the evidence. I accept that the evidence of the description of the documents in the affidavit of Mr Barravecchio filed 12 February 2009 is insufficient for me to determine that any one document, or class of documents, in the description attracts the doctrine of public interest immunity. It does not follow, however, that public interest immunity is not available to each or any of them. In that regard I note that the Commissioner has made no attempt to provide any information to the Court that might bear relevantly, admissibly and probatively upon whether the balance of interests would favour disclosure. The ordinary rules about the burden of proof may well require the LIV to establish the basis of its claim for the relief it seeks, but the Commissioner as a model litigant[41] and proponent of part of the public interest to be balanced in this proceeding against that invoked by the LIV has an important role to play to assist the Court in reaching the correct answer. The correspondence and material from officers of the Commissioner to the LIV, and exhibited to Mr Barravecchio’s affidavit might be thought, on one view, to be little more than a restatement by the Commissioner of the failed contention made “with remarkable clarity and brevity” in Middendorp.[42] In the end it is for the Court to decide whether the immunity exists in respect of any document or class of documents.[43] In my view it would be as unsatisfactory to reject the LIV’s claim on the basis that it has not discharged its onus, as it would be to dismiss the Commissioner’s claim on the basis that it has failed to establish its entitlement to the document beyond an assertion of statutory power to demand production. The immunity is founded upon protection of the public interest generally and “cannot be waived or surrendered by individuals”.[44] In those circumstances I will not make the order sought by summons by the LIV nor those urged upon me by the Commissioner but will relist the proceeding for the parties to make submissions about what further directions should be made for the Court to determine the issue by reference to the documents and any further materials which the parties may wish to adduce in evidence. I will also then hear the parties about any question of costs.
[41]Commonwealth Attorney-General, “Appendix B: The Commonwealth’s obligation to act as a model litigant” Legal Services Direction 2005; PS LA2007/12: Conduct of Tax Office litigation in courts and tribunals; Bruce Quigley “The role and Implications of Litigation in Tax Administration”, Australian Petroleum Production & Exploration Association, Annual Conference, Hobart, 22 November 2007; Dale Boucher “An Ethical Code… Not a Code of Conduct” (1996) 79 Canberra Bulletin of Public Administration 3, 4; GA Del Pont, Lawyer’s Professional Responsibility in Australia (2006, Thomson) 296-297; see also: Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333, 342; SCI Operations Pty Ltd v Commonwealth (1996) 139 ALR 595, 613, 614, 621; Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 695, 704; Hughes Aircraft Systems International v Airservices Australia (1997) 146 ALR 1, 40, 41; Scott v Handley (1999) 58 ALD 373, 383-4; White v Minister for Immigration Multicultural Affairs [1999] FCA 1433, [81]; OneTel Ltd v Deputy Commissioner of Taxation (2000) 171 ALR 227, 233; ACCC v Warner Music Australia Pty Ltd [2000] FCA 647; Challoner v Minister for Immigration Multicultural Affairs [2000] FCA 1601; NAFK of 2002 v Minister for Immigration Multicultural Indigenous Affairs [2002] FCA 1374, [9]; NAOY v Minister for Immigration [2002] FMCA 275, [8]; Wodrow v Commonwealth of Australia [2003] FCA 403, [38] - [43]; ABB Power Transmission Pty Ltd v ACCC [2003] FCAFC 261, [35].
[42][1994] 2 VR 313, 316 (Nathan J).
[43]Middendorp Electric Co Pty Ltd v Law Institute of Victoria [1994] 2 VR 313, 326-7 (Nathan J).
[44]Ibid, 324 (Nathan J).
Accordingly I make the following orders:
(a)That the proceeding be listed at 10.00 am 27 February 2009 for further directions.
(b)That the costs of the proceeding are reserved.
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