Rambal v Commissioner of Taxation
[2013] FCA 420
•6 May 2013
FEDERAL COURT OF AUSTRALIA
Rambal v Commissioner of Taxation [2013] FCA 420
Citation: Rambal v Commissioner of Taxation [2013] FCA 420 Parties: SAROJNI RAMBAL v COMMISSIONER OF TAXATION; VIKAS RAMBAL AS THE TRUSTEE FOR THE VIKAS RAMBAL FAMILY TRUST v COMMISSIONER OF TAXATION File numbers: NSD 1489 of 2012
NSD 1490 of 2012Judge: ROBERTSON J Date of judgment: 6 May 2013 Catchwords: DISCOVERY – discovery of documents referable to specific paragraphs of affidavit filed on behalf of applicants Legislation: Income Tax Assessment Act 1936 (Cth) s 264
Federal Court Rules 2011 (Cth) r 20.14(1)Date of hearing: 6 May 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 16 Counsel for the Applicant: Mr CG Catt Solicitor for the Applicant: Lavan Legal Counsel for the First and Second Respondents: Ms M Hirschhorn Solicitor for the First and Second Respondents: Maddocks Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1489 of 2012
BETWEEN: SAROJNI RAMBAL
ApplicantAND: COMMISSIONER OF TAXATION
Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
6 MAY 2013
WHERE MADE:
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1490 of 2012
BETWEEN: VIKAS RAMBAL AS THE TRUSTEE FOR THE VIKAS RAMBAL FAMILY TRUST
ApplicantAND: COMMISSIONER OF TAXATION
Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
6 MAY 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The applicants give discovery in terms of paragraphs 3b, 3c, 3d, 3e, 3f, 3g, 3h, 3i, 3j, 3n and 3o of the respondent’s interlocutory application as amended on 3 May 2013.
2.The documents within the categories in order 1 are to be discovered as soon as possible but in any event before 5 pm on 3 June 2013.
3.Paragraphs 3k, 3l and 3m of the respondent’s interlocutory application as amended on 3 May 2013 be stood over pending the production of documents by PriceWaterhouseCoopers and PriceWaterhouseCoopers Securities Ltd pursuant to a subpoena returnable on 15 May 2013.
4.The respondent pay any costs of the applicants thrown away by the amendment of the interlocutory application.
5.Subject to the immediately preceding order, the applicants pay the respondent’s costs of the interlocutory application.
6.Liberty to the parties to apply on three days’ notice.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1489 of 2012
BETWEEN: SAROJNI RAMBAL
ApplicantAND: COMMISSIONER OF TAXATION
Respondent
JUDGE:
ROBERTSON J
DATE:
6 MAY 2013
PLACE:
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1490 of 2012
BETWEEN: VIKAS RAMBAL AS THE TRUSTEE FOR THE VIKAS RAMBAL FAMILY TRUST
ApplicantAND: COMMISSIONER OF TAXATION
Respondent
JUDGE:
ROBERTSON J
DATE:
6 MAY 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
There is before me the respondent’s interlocutory application filed on 23 April 2013, as amended and filed on 3 May 2013, for non-standard discovery by reference to categories 3(b) through to 3(o).
The paragraphs in issue are one fewer than that because Mr Catt, counsel for the applicants, concedes category 3(i).
The paragraphs are as follows, the references to the VR affidavit being to the affidavit of Vikas Rambal affirmed 27 March 2013:
3. The Respondent identifies the following categories of documents:
a. …
b.Any diary notes, file-notes or other documents of Vikas Rambal evidencing the meeting and the matters discussed at the meeting between Vikas Rambal and Daniel Clauw, Ken Wallace and Edward Cazazuti in June 2006 held in Paris referred to at paragraphs [130]-[132] inclusive of the VR affidavit.
c.Any diary notes, file-notes or other documents of Vikas Rambal evidencing the meeting and the matters discussed at the meeting between Vikas Rambal and Andreas Walewski and Ken Wallace and Kim Haut in October 2006 held in Singapore referred to at paragraphs [133]-[135] inclusive of the VR affidavit.
d.Any diary notes, file-notes or other documents of Vikas Rambal evidencing the meeting and the matters discussed at the meeting between Vikas Rambal and Naush Dinshaw of Macquarie Bank on or around September 2006 referred to in paragraph [139] of the VR affidavit.
e.Any diary notes, file-notes or other documents of Vikas Rambal evidencing the meeting and the matters discussed at the meeting on or around 7 December 2006 between Vikas Rambal, Andreas Walewski and Basil Lenzo in Perth referred to in paragraphs [144]-[146] inclusive of the VR affidavit.
f.Any diary notes, file-notes or other documents of Vikas Rambal evidencing the meeting and the matters discussed at the meeting on or around 12 January 2007 between Vikas Rambal, Pankaj Oswal, Mr Fairweather and Edward Cavazuti (the latter participating by telephone) referred to in paragraphs [171]-[173] inclusive of the VR affidavit.
g.Any diary notes, file-notes or other documents of Vikas Rambal evidencing the discussions in January, February or March 2007 between Vikas Rambal and any employees of Yara Australia Pty Ltd (Yara) or their advisers in relation to any of the matters that are stated in paragraph [179] of the VR affidavit.
h.Any diary notes, file-notes or other documents of Vikas Rambal evidencing the discussions and the matters discussed in March 2007 between Vikas Rambal on the one hand and Pankaj Oswal or any advisers to Pankaj Oswal on the other that are referred to in paragraphs [186] and [188]-[189] inclusive of the VR affidavit.
i.Any diary notes, file-notes or other documents of Vikas Rambal evidencing the alleged agreement in March 2007 or Apri1 2007 between Vikas Rambal on the one hand and Pankaj Oswal or any advisers to Pankaj Oswal on the other referred to in paragraph [196] of the VR affidavit that “the consideration filed on the share transfer form should riot disclose the amount paid for the shares or refer to the Deed of Settlement and Release”.
j.Any document containing or recording an offer from Yara to Vikas Rambal to acquire 246 shares in BHPL from Vikas Ram with bal as trustee for the Vikas Rambal Family Trust (VRFT) for US$20 million as referred to in paragraph [210] and/or paragraphs [145]-[146] of the VR affidavit.
k.Any documents or other information provided by Vikas Rambal or any other person on his behalf to PricewaterhouseCoopers (PwC) or its partners or employees on or about January 2007-21 April 2007 for the purposes of obtaining a valuation of the VRFT’s shares in BHPL as referred to in paragraphs [211]-[213] and the annexure marked “VR47” of the VR affidavit.
l.Any documents or other information provided by Vikas Rambal or any other person on his behalf to PwC or its partners or employees on or about September 2006 to 27 November 2006 for the purposes of obtaining a report on the BHPL and BFPL financial statements referred to in paragraphs [112] and/or [116] and/or [118] and at the annexure marked “VR19” of the VR affidavit.
m.Any documents or other information provided by Vikas Rambal or any other person on his behalf to PwC or its partners or employees on or about September 2006 to 12 December 2006 for the purposes of obtaining the report dated 12 December 2006 referred to in paragraph [126] and the annexure marked “VR25” of the VR affidavit.
n.Any diary notes, file-notes or other documents of Vikas Rambal evidencing the discussions and the matters discussed between Vikas Rambal and “A Oswal” in early May 2006 as referred to in paragraph [129] of the VR affidavit.
o.Any document evidencing the discussions between the solicitors acting for Vikas Rambal and Yara about the interlocutory application made by Vikas Rambal to the Supreme Court to a point a receiver to BHPL and BFPL that are stated in paragraph [141] of the VR affidavit.
Apart from category 3(i), the discovery categories and orders to give effect to those categories are opposed by the applicants.
The respondent relies on the affidavit of Ms Miller affirmed on 24 April 2013, and the applicants rely on the affidavit of Mr Chong sworn on 30 April 2013. Those affidavits are largely formal and do not depose to matters of detail such as the cost and time that would be involved in finding the documents.
I also have before me the respondent’s written brief, as it is called, filed on 29 April 2013 and the applicants’ responsive brief filed on 30 April. The dates of these briefs show that they preceded the amended interlocutory application of 3 May 2013 to which I have referred.
In my view the short answer to the applicants’ opposition to the categories, subject to categories 3(k) to 3(m), is that the documents or the categories of which the respondent seeks discovery are, in their terms, referable to the applicants’ affidavit, that is, to particular paragraphs of the affidavit affirmed by Mr Rambal on 27 March 2013 and filed on 2 April 2013.
The relevance of that in terms of the Federal Court Rules 2011 (Cth) is to r 20.14(1)(a), that is, the categories appear to be directly relevant to the issues raised in that affidavit.
An important consideration is whether the application in respect of the categories should be read by reference to the rules for standard discovery. I should make it clear, as Ms Hirschhorn, counsel for the respondent, made clear, that the categories are to be read by reference to r 20.14(1), and in particular subparagraphs (b) and (c), that is, documents of which after a reasonable search the party is aware, and documents that are or have been in the party’s control.
Thus in my view there is no force in Mr Catt’s contention that the categories as sought on behalf of the respondent would put the applicants in the invidious position of having to make extensive inquiries and throw open the files of all of the advisers to Mr Rambal. Equally I do not accept that the categories should be limited, as Mr Catt submitted they should, to documents prepared by Mr Rambal as opposed to documents which are or have been in the party’s control.
In those circumstances, that is, the link between the categories sought and the affidavit of Mr Rambal, I do not accept the submissions on behalf of the applicants that the respondent has not established that discovery will facilitate the just resolution of the proceedings or that the categories are directly relevant to the issues raised in the affidavits. It seems to me that in terms of speed and efficiency, the course of calling for the documents during the trial or in the cross-examination of Mr Rambal is likely to lead to delay and inefficiency, rather than their opposites.
Secondly, I reject therefore the submission on behalf of the applicants that discovery should be refused because the respondent’s affidavit makes no mention of the issues and contentions. In my view, in the circumstances of this case, it is not necessary for the respondent’s affidavit in support of the application for discovery to have done so.
Thirdly, I see no force in the submission that because there was, as Mr Catt submitted, an extensive audit during which s 264 of the Income Tax Assessment Act 1936 (Cth) was available to the Commissioner, this derogates from an order for discovery to further the orderly management of the proceedings in the Court.
Similarly, and again subject to one matter I am going to come back to, the availability generally of subpoenas, particularly to a party, does not seem to me to derogate from the categories of discovery.
It was also put by Mr Catt that there was an inconsistency between the present application and Practice Note Tax 1, and also between the present application and references to the transcript of an interlocutory hearing before Edmonds J on 22 November 2012. As to those matters, Edmonds J’s observations were of course made long before the affidavit of Mr Rambal was sworn and filed. Further I do not see any inconsistency between what is sought in these particular circumstances and Practice Note Tax 1.
The remaining matter is paragraphs 3(k), (l) and (m) which are paragraphs that seek documents or information provided by Mr Rambal or on his behalf to PricewaterhouseCoopers. In my view, those paragraphs or orders to give effect to those paragraphs should be postponed in light of what I was told from the bar table that subpoenas have in fact issued to the relevant PricewaterhouseCoopers entities, and they are presently returnable on 15 May. In my view, paragraphs 3(k), (l) and (m) can be revisited if and when it becomes clear that the documents sought are not produced on the subpoenas to which I referred. I do not see it as appropriate to have time and money spent by more than one entity seeking out the same documents at the same time.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate:
Dated: 6 May 2013
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