Wiegand v Comcare Australia

[2002] FCA 1501

FEDERAL COURT OF AUSTRALIA

Wiegand v Comcare Australia [2002] FCA 1501

JOACHIM WIEGAND v COMCARE AUSTRALIA

S 183 of 2002

von DOUSSA J
ADELAIDE
22 NOVEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 183 OF 2002

BETWEEN:	JOACHIM WIEGAND APPLICANT
AND:	COMCARE AUSTRALIA RESPONDENT
JUDGE:	von DOUSSA J
DATE OF ORDER:	22 NOVEMBER 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.Notice of motion dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 183 OF 2002

BETWEEN:	JOACHIM WIEGAND APPLICANT
AND:	COMCARE AUSTRALIA RESPONDENT

JUDGE:	von DOUSSA J
DATE:	22 NOVEMBER 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. There is a notice of motion before the Court this morning directed to Comcare Australia, although the orders sought are against the Australian Taxation Office (ATO) to provide details of an “audit trail” relating to the audit of the applicant’s taxation returns for a three year period. One of the issues in these proceedings (being an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) against a decision of the Administrative Appeals Tribunal (AAT) to disallow the applicant’s claim for compensation) is whether the employment of Mr Wiegand contributed to the ailment which is the subject of his claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). He argues as part of his case that the behaviour of the ATO in conducting an audit of his tax affairs should be treated as part of his employment, and that the stress associated with the audit should be treated as a contributing factor to his ailment.

2. I dismiss the notice of motion and give the following brief reasons for doing so.  First of all, it is directed to the ATO, which is not a party to these proceedings.  Secondly, the appeal to this Court in the principal proceedings is an appeal on questions of law.  It is not appropriate to be seeking to discover and adduce fresh evidence in the appeal proceedings in this Court.  These are sufficient reasons in themselves to dismiss the notice of motion, but I add, in case it is of any assistance in the further conduct of the matter, that I do not think that there is any basis whatsoever upon which the ATO should be required to disclose internal documents relating to that tax audit.

3. The ATO asserts that it is protected from doing so by s 16 of the Income Tax Assessment Act 1936 (Cth). That may or may not be right. However, I would disallow the application, even if the ATO were joined, on the further ground that the information that may be in the ATO audit file is irrelevant to the issues that were before the AAT. The details of Mr Wiegand’s relevant taxation returns are sufficiently disclosed in the AAT papers to indicate that Mr Wiegand made a very large claim for business-related expenses in the three years of the audit. In my view, the ATO would have been wanting in its public duty had it not investigated claims of the magnitude that were made. Whether the investigation occurred by way of random audit, by direct selection because of the information in the returns that Mr Wiegand filed, or for some other reason I think is beside the point. What is important to this case is that any stress that was suffered by Mr Wiegand as a consequence of the investigation and the tax assessments that were raised thereafter is not something that is relevantly related to the employment for the purposes of the Safety, Rehabilitation and Compensation Act. 

4. If there was any stress arising out of the tax audit that contributed to Mr Wiegand’s condition, it is a stress that is related to the proper enforcement of the income tax laws of Australia against one of the citizens of Australia.  It is quite removed from the employment relationship.  I therefore dismiss the notice of motion.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa.

Associate:

Dated:             4 December 2002

The applicant appeared in person.
Counsel for the Respondent:	Mr S H Milazzo
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	22 November 2002
Date of Judgment:	22 November 2002