Lombardo Marine Pty Ltd v Commissioner of Taxation

[1988] FCA 628

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I	JUDGMENT No	..b. 2&....8.8-	!I	t-
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NOT FOR DISTRIBUTION

C A T C H W O R D S

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PRACTICE AND PROCEDURE - specific discovery - affidavit as to . r I

inquiries made and searches conducted	- no additional documents	-	L
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further	ord	for	basis	no	- motion	dismissed.	I
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Federal Court Rules 0.15 r.O

LOMBARDO MARINE PTY LTD V THE COMMISSIONER OF TAXATION

Nos. WAG 2132 and 2133 of 1907

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NOT FOR DISTRIBUTION

IN THE FEDERAL COURT	)
OF AUSTRALIA	1

WESTERN	AUSTRALIA	)
DISTRICT	REGISTRY	1

GENERAL	DIVISION	1	Nos. WAG 2132 and 2133 of 1987
B E T W E E N :	LOMBARDO	ARINE	PTY LTD

Applicant

and
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THE COMMISSIONER OF TAXATION

Respondent

MINUTE OF ORDER

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JUDGE CtAKING ORDER: FRENCH J.

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DATE OF ORDER:	24 OCTOBER 1988
WHERE MADE:	PERTH

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THE COURT ORDERS THAT:

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1. The motion is dismissed.

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2. The applicant is. to pay the respondent's costs of the '.'

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motion.

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NOTE:  Settlement and entry of orders is dealt with in i

Order 36 of the	Rules.	Federal	Cou t	i.
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NOT FOR DISTRIBUTION

IN THE FEDERAL COURT )

AUSTRALIA OF 1

WESTERN	AUSTRALIA	1
DISTRICT	REGISTRY	1
GENERAL	DIVISION	1

. 1 I Nos. WAG 2132 and 2133 of 1987

' i l B E T W E E N : LOMBARDO MARINE PTY LTD

Applicant

and

THE COMNISSIONER OF TAXATION

Respondent

CORAM:  FRENCH J.

24 OCTOBER 1988

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EX TEMPORE REASONS FOR JUDGMENT

ON MOTION FOR SPECIFIC DISCOVERY

This is a motion in appeals 2132 and 2133 of 1987

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whereby the applicant in each case seeks an order that:

1. The Respondent file an affidavit stating

whether file notes, internal memoranda and

correspondence b tween officers of the

Respondent relating to	the issue of the notice
of assessment against the company	now known as

Bulan Pty Ltd, or the copy notices of

. .. . .	assessments served upon former shareholders of
that company, or the objection against the
assessment filed on behalf of the said
company, is or has been in his possession,
custody or power, and if they have been but
are not now in his possession, custody or
power when he parted with them and what has l
become of them.

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In support of that motion, notice of which was filed on 19

October, the solicitor for the applicant, Mr Vaughan, swore an

affidavit referring to the discovery given by the respondent and

deposing to his belief that it did not disclose all relevant

documents. In particular he deposed to a belief that the

respondent has, or at some time had, in his possession, custody or

power; file notes, internal memoranda and correspondence passing between officers of the respondent. His belief is grounded on the disclosure, by way of informal additional discovery, of documents

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of a character similar to that for which specific discovery is

sought. Copies of those memoranda were exhibited.

In reply, John Francis Jancey, who is a Senior Appeals

Officer with the Australian Taxation Office, swore in an affidavit

filed today, that apart from the documents already discovered

including the further items provided by informal discovery on 5

October, the respondent, to the best of his knowledge, information and belief, does not have, and has never had any other documents

of the kinds referred to in the	applicant's notice of motion. Mr
Jancey was cross-examined on	that affidavit and in the course of

that cross-examination confirmed that he caused inquiries to be
made and searches to be conducted of the relevant files and had

been unable to discover any additional documents.

The motion for specific discovery is brought under 0.15

r.8 which provides that:

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"Whgre, at any stage of the proceeding, it appears to the

of the case or from any document filed in the proceeding

that there are grounds for a belief that some document
o r class of document relating to any matter in question

in the proceeding may be or may have been in the

possession, custody or power of a party, the Court may

order that party	-
(a)	to file any affidavit stating whether that document

or any document of that class is or has been in his

possession, custody or power and, if it has been
but is not then in his possession, custody or power, when he parted with it and what has become of it; and
(b)	to serve the affidavit on any other party."

In this case the motion has, in a sense, produced the result

sought in that an affidavit deposing to the non-existence of the

relevant documents has been filed. In any event I am satisfied

that there is no basis upon which I could direct the provision of .

any further discovery having regard to the evidence before me and

the criteria set out in	0.15 r.0.	The motion will be dismissed
with costs.

- .	- -	-.	- . .	In each case:
1. The motion is dismissed.

2.	The applicant is to pay the respondent's costs	of
the motion.

I certify that the preceding

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three ( 3 ) pages are a true

copy of the Ex Tempore

Reasons for Judgment of h i s

Honour Justice French.

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Counsel for the Applicant:	Ar J. Vaughan	L .
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Solicitors for the Applicant: Freehill Hollingdale	6 Page	i .

Counsel for the Respondent:  11r C . Pullin

Solicitors for the Respondent: Australian Government Solicitor

Date of Hearing:  2 4 October 1988