Low v Australian Taxation Office

[2000] FCA 1934

FEDERAL COURT OF AUSTRALIA

Low v Australian Taxation Office [2000] FCA 1934

LAN LOW v AUSTRALIAN TAXATION OFFICE
N1211 of 2000

MADGWICK J
7 DECEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1211 of 2000

BETWEEN:	LAN LOW APPLICANT
AND:	AUSTRALIAN TAXATION OFFICE RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	7 DECEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The applicant’s Notice of Motion be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1211 of 2000

BETWEEN:	LAN LOW APPLICANT
AND:	AUSTRALIAN TAXATION OFFICE RESPONDENT

JUDGE:	MADGWICK J
DATE:	7 DECEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. The applicant has an appeal pending in this Court against a judgment of Driver FM, by which judgment his Honour declined to grant an extension of time for the applicant to bring an application to institute proceedings alleging unlawful discrimination by her former employer, the respondent, contrary to the Disability Discrimination Act 1992 (Cth), the Racial Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth).

2. The applicant has moved the Court for an order, in effect, that she be permitted to subpoena "all documents to be made available to the applicant for the purpose of clearing defamatory statements/files created by the ATO, Dept of Social Security and/or any other government offices".

3. It appears that the applicant's history with the Australian Tax Office (“ATO”) was lengthy and, to put the matter neutrally and without laying blame anywhere, marked by some conflict between her and various officers of that institution.  Driver FM took the view that there was nothing before him to suggest an arguable case of discrimination under any of the

   
   
   

   relevant legislation.  He dealt with the matter on the basis that the applicant’s application did not disclose an arguable case.  It was in effect, a strike-out application by the respondent which Driver FM upheld.

4. It is apparently not in dispute that the applicant has been given what the ATO calls her personnel file, in its entirety.  In the index to the appeal papers which has been filed, the applicant refers to various documents which she does not have and explains that the purpose of the subpoena is to obtain documents she feels exist and have not been provided to her by the ATO.  The applicant claims that as Driver FM set aside a somewhat similar subpoena, the documents that she now seeks were not before him and that, had they been, they could have influenced his decision.

5. The difficulty is that the applicant, who is self-represented, has been unable to show how any of the documents, to which I invited her to refer by way of example, might assist her in relation to the relevant issues on appeal.  Further, I do not consider that, when a broad subpoena was set aside by Driver FM, there was not an adequate opportunity for the applicant to issue more precisely directed subpoenas which may have aimed at the particular documents that she now says would assist her case.

6. In the circumstances it seems to me that there would now be no proper or relevant forensic purpose to be served by the issuing of the subpoena which the applicant seeks and I accordingly decline to order that such a subpoena be issued.

7. In relation to the remainder of the Notice of Motion, as the applicant has explained it, what she seeks in effect is discovery or, indeed, something broader than discovery.  The applicant wants the ATO to provide her with the identification of all files and other documents relating to her so that, from such identification, she can determine which documents she may wish to subpoena.  This is a request for something much broader than discovery attached to an appellate process.  It would in my opinion be an abuse of the process of the Court to make such an order and may even be beyond the power of the Court.  The applicant has submitted to the contrary but there is no substance in her submissions.

8. I decline to make the orders sought or any variation of them that might reasonably be crafted.  There will be no order as to costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:            15 January 2001

Applicant appeared in person.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 December 2000
Date of Judgment:	7 December 2000