Minister for Community Services and Health v Chee Keong Thoo

[1988] FCA 54

.

IN THE FEDERAL COURT OF AUSTRALIA	1
VICTORIA DISTRICT REGISTRY	) No. VG310 of 1387
GENERAL DIVISION	)

BETWEEN:  ROYAL AUSTRALIA

INVESTMENTS PTY. LTD.

Applicant

m:  THE coMMIssIoNER OF

TAXATION OF THE

COMMONWEALTH OF AUSTRALIA

Respondent

CORAM :	Jenkrnson J.
n:	11 February, 1388

REASONS FOR JUDGMENT

Application for directlons in a income tax appeal.

The respondent has filed and served on the applicant a

notice for discovery.	The notlce goes beyond the form prescribed
by the rules	for such a notice, in that particular classes of
when he was consldering the appllcant's objection against the
documents are specifled In the notlce	as among those of which

discovery is sought. Counsel for the applicant did not, on the

directlons hearing which was held after the notice had been

served, criticise that specification as otiose r as comprehending

documents which were not relevant to an issue and therefore not

discoverable. He did seek an order, pursuant to 0.15 R.3, that

discovery by the applicant be not	required. His submission was
that when the respondent	was engaged in making the assessment, and

assessment, which forms the subject	of the appeal	he had available
to him in	ss. 262A, 263	and 264 of the Income Tax Assessment Act

1936, adequate means of obtaining knowledge of all the documents

which might be relevant to a determination of the questions which

will be in issue in the appeal. It was, in the submission of

counsel, inappropriate and oppressive of the taxpayer that	an
admlnlstrator armed with such powers should	have, without special
cause, a right of discovery	as well.

In my opinion the considerations advanced on the

applicant’s behalf do not lustify denial of discovery in

accordance with the Court’s Rules. Whatever may, or should, have

happened before the decision of the respondent which is the

subject of the appeal was made, the parties are now litigants in a

proceeding in the Court’s original jurisdiction. Discovery is a

means of ensuring effective presentation of the case for	each
party, and also, as Menzies S. observed in L’Estranqe	v. Federal

Commissioner of Taxation (1973) 73 A.T.C. 4061, a means of

avolding the delay and inconvenience whlch is l i k e l y to attend a

hearing at which particular relevant documents are seen by one

party for the first time.

’I decline to give the direction sought by counsel for

the applicant.

I certify that this and the

preceding page is	a true copy of the
Reasons for Judgment herein of	the

Honourable Mr. Justice Jenkinson.

Dated: 11 February, 1988

Counsel for the Applicant	Mr. J.W. de Wiln
Counsel for the Respondent	Mr. G.T. Pagone

Solicitor for the Applicant	:	John F. Harvey
Solicitor for the Respondent :	Australian  Government Solicltor
Date of Hearing	14 December, 1987