Section 64 of the Judiciary Act 1903-1950 applies to such an action. It is no answer to an application by one party to proceedings for an order for discovery that that party is for some reason immune from such an order.
Decision of the Supreme Court of Queensland (Matthews J.) reversed.
APPEAL from the Supreme Court of Queensland.
An action was commenced in the High Court by the Commis- sioner of Taxation, Patrick Silvester McGovern, under Pt. VII. of the Income Tax and Social Services Contribution Assessment Act 1936-1951, against Herbert Arthur James Naismith as defendant for declarations that the defendant had been guilty of an offence under S. 230 (1) of the said Act in knowingly and wilfully under- stating his income in his return for the year ended 30th June 1951 and further or alternatively under S. 227 (1) of the said Act in making and delivering a return, namely the said return, false in certain particulars, and for an order for the payment of penalties in respect of the alleged offences.
The defendant served a notice on the plaintiff in accordance with O. 32, r. 9 of the High Court Rules, requiring him to make discovery on oath of the documents which were or had been in his possession or power relating to the matters in dispute in the action. The plaintiff refused to comply with the notice claiming that in proceedings of this kind, which though civil in form were penal in nature, discovery against the plaintiff at the suit of the defendant was inappropriate, as in such proceedings it had never been the practice to order discovery against the defendant at the suit of the plaintiff.
Thereupon the defendant applied by summons to a judge of the Supreme Court of Queensland exercising federal jurisdiction under S. 39 2 of the Judiciary Act 1903-1950 for an order that the plaintiff comply with the notice. This summons was dismissed by Matthews J. who held that proceedings under SS. 227 and 230 of the said Act were criminal proceedings and that therefore discovery could not be ordered.
From that decision the defendant appealed to the High Court. G. L. Hart Q.C. (with him J. L. Kelly), for the appellant. Under S. 237 of the Income Tax and Social Services…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Naismith v McGovern [1953] HCA 59
Case
[1953] HCA 59
Decision Date
CaseChat Overview and Summary
This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Queensland. The dispute arose from an action commenced by the Commissioner of Taxation against the appellant, Mr. Naismith, seeking declarations of offences under the *Income Tax and Social Services Contribution Assessment Act 1936-1951* and the recovery of pecuniary penalties. Mr. Naismith had served a notice on the Commissioner requiring discovery of documents relating to the matters in dispute, which the Commissioner refused, arguing that such proceedings, though civil in form, were penal in nature and thus discovery against the Commissioner was inappropriate.
The legal issues before the High Court were whether the defendant in a taxation prosecution under Part VII of the *Income Tax and Social Services Contribution Assessment Act 1936-1951* was entitled to an order for discovery against the Commissioner, and whether Section 64 of the *Judiciary Act 1903-1950* applied to such proceedings. The Supreme Court of Queensland had dismissed the defendant's application for discovery, holding that the proceedings were criminal and therefore discovery could not be ordered.
The High Court reasoned that taxation prosecutions under Part VII of the Assessment Act, while penal in nature, were commenced and prosecuted in accordance with the usual practice and procedure of the Court in civil cases, as expressly provided by Section 237 of the Act. The Court held that Section 64 of the *Judiciary Act*, which stipulates that the rights of parties in suits involving the Commonwealth shall be as nearly as possible the same as in suits between subjects, applied to these proceedings. The Court rejected the Commissioner's arguments that Part VII constituted a complete code displacing Section 64, or that the penal nature of the proceedings inherently barred discovery for the defendant because the plaintiff could not obtain it. The Court found no valid objection to an order for discovery being made in favour of the defendant.
Consequently, the High Court allowed the appeal, set aside the order of the Supreme Court of Queensland, and ordered the Commissioner of Taxation to comply with the notice of discovery within twenty-eight days. The Commissioner was also ordered to pay the costs of the proceedings before the Supreme Court.