Williams, S.J. v Williams, J.S.P
[1992] FCA 761
•7 Oct 1992
IN THE FEDERAL COURT OF AUSTRALIA ) No. QG 3013 of 1991 QUEENSLAND DISTRICT REGISTRY 1 GENERAL DIVISION 1 IN THE MATTER OF: J J WILLIAMS (CURRUMBIN) PTY LTD AUSTRALIAN COMPANY NO: 009 681 127 SIDNEY JOHN ARTHUR WILLIAMS. BARRY JOSEPH WILLIAMS and GRAHAME CHARLES WILLIAMS
Applicants
JOHN SAMUEL PATRICK WILLIAMS and
JOHN MICHAEL WILLIAEIS
First Respondent
J J WILLIAMS (CURRUMBIN) PTY LTD
Second Respondent
J J W (TWEED) PTY LTD
Third Respondent
MINUTES OF ORDERS
JUDGE MAKING ORDER: Drummond J DATE OF ORDER: 7 October, 1992 WHERE MADE: Brisbane THE COURT ORDERS THAT: NOTE -. Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
By 4.00 p.m. on Thursday, 8 October, 1992 the respondent Mr. John Samuel Patrick Williams produce to the applicants' solicitors for inspection the original unedited pages of each of that respondent's income tax returns for the period 1972 to 1991 which contain all the names of each of that respondent's employers and the amounts of all income earned from such employers.
2 . The costs of today be costs in the proceedings.
IN THE FEDERAL COURT OF AUSTRALIA ) NO. QG 3014 of 1991 QUEENSLAND DISTRICT REGISTRY ) GENERAL DIVISION ) IN THE MATTER OF: J J W (TWEED) PTY LTD AUSTRALIAN COMPANY NO: 002 999 117 SIDNEY JOHN ARTHUR WILLIAMS, BARRY JOSEPH WILLIAMS and GRAHAME CHARLES WILLIAMS
Applicants
JOHN SAMUEL PATRICK WILLIAMS and
JOHN MICHAEL WILLIAMS
First Respondent
J J WILLIAMS (CURRUMBIN) PTY LTD
Second Respondent
J J W (TWEED) PTY LTD
Third Respondent
MINUTES OF ORDERS
Drummond J
7 October, 1992
Brisbane
THE COURT ORDERS THAT:
By 4.00 p.m. on Thursday, 8 October, 1992 the respondent Mr. John Samuel Patrick Williams produce to the applicants' solicitors for inspection the original unedited pages of each of that respondent's income tax returns for the period 1972 to 1991 which contain all the names of each of that resuondent's L ~~-~~~ ~- - employers and the amounts of all income earned from such employers.
2 . The costs of today be costs in the proceedings.
NOTE: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.IN THE FEDERAL COURT OF AUSTRALIA ) No. QG 3013 of 1991 QUEENSLAND DISTRICT REGISTRY No. QG 3014 of 1991 GENERAL DIVISION No. QG 3013 of 1991 IN THE MATTER OF: J J WILLIAMS (CURRUMBIN) PTY LTD AUSTRALIAN COMPANY NO: 009 681 127 SIDNEY JOHN ARTHUR WILLIAMS, BARRY JOSEPH WILLIAMS and GRAHAME CHARLES WILLIAMS
Applicants
JOHN SAMUEL PATRICK WILLIAMS and
JOHN MICHAEL WILLIAMS
First Respondent
J J WILLIAMS (CURRUMBIN) PTY LTD
Second Respondent
J J W (TWEED) PTY LTD
Third Respondent
No. QG 3014 of 1991
IN THE MATTER OF: J J W (TWEED) PTY LTD AUSTRALIAN COMPANY NO: 002 999 117 SIDNEY JOHN ARTHUR WILLIAMS, BARRY JOSEPH WILLIAMS and
GRAHAME CHARLES WILLIAMS Applicants
JOHN SAMUEL PATRICK WILLIAMS and
JOHN MICHAEL WILLIAMS
First Respondent
J J WILLIAMS (CURRUMBIN) PTY LTD
Second Respondent
J J W (TWEED) PTY LTD
Third Respondent
Coram: Drummond J Date: 7 October, 1992
Place: Brisbane
EX TEMPORE REASONS FOR JUDGMENT
I have before me notices of motion brought in both these actions seeking orders that the first respondent John Samuel Patrick Williams produce for the inspection of the solicitors for the applicants that respondent's income tax returns, in effect, for the years 1972 to 1991.
The background to the applications is as follows: discovery was earlier ordered to be given in the actions and, at a contested hearing before Cooper J on 15 June, 1992, his Honour made orders that all parties make and file supplementary lists of documents on or before 26 June, 1992. In other words, there was a general order for discovery followed by an order for general supplementary discovery.
The respondent in question, in his supplementary list of documents, listed all the relevant tax returns but, when the time for inspection came, what was produced for inspection was only the one page from each of the returns on which that respondent as a taxpayer was required to list all of his sources of income and the amounts of all such income in the particular financial year. In producing those single pages, he adopted the practice of revealing all details, including amounts earned, relating to his employment by
companies in what I will call the Tweed group. However, he went somewhat further by also revealing the names of all other employers for whom he worked or from whom he received remuneration and, indeed, all other sources, including rent and trusts, from which he received income. However, what was masked over in relation to this second group of sources of income, that is, those sources not associated with the Tweed group, was the amounts of income received by this respondent in each particular financial year.
As I have said, the orders for supplementary discovery were made on 15 June requiring each supplementary list to be filed on or before 26 June, 1992. The orders apparently arose out of a significant amendment made to each defence. This respondent's supplementary list of documents listing his income tax returns was filed on 29 June and it is common ground that inspection took place very promptly thereafter.
The first complaint coming from the applicants as to the masking over of the income details from non-Tweed related organisations in the income tax returns emerged in a letter from the applicants' solicitors to the respondents' solicitors dated 30 September. That produced a response on the same day in terms that the masked over portions of the tax returns of this particular respondent were not relevant to any issues in the proceedings. Counsel for the applicants in both actions contends that the issues raised by paragraph 7A of each amended defence will require an examination of this respondent's entitlement to payment for work done by him as manager of J.J. Williams (Currumbin) Pty. Ltd. (the second respondent in each action) and that in conducting that examination it is relevant to know what amounts this respondent received from all non-Tweed employers.
The explanation counsel for the applicants advances is that, by knowing what payment this respondent received from all non-Tweed employers, a train of inquiry may be able to be embarked upon to ascertain, hopefully, what time would have been available to this respondent to devote to management of J.J. Williams (Currumbin) Pty. Ltd. in each of the relevant financial years. I must say I find that suggestion somewhat unconvincing and would not be prepared to accept it as a ground for requiring full disclosure of the relevant page of each of the income tax returns listing this respondent's income details.
However, there are two considerations which seem to me to lead to the conclusion that I should order production for inspection of the unedited page in question of each of the income tax returns. The first of these considerations is that the respondent has elected to produce for inspection, without any objection, details identifying his non-Tweed employers and his other non-Tweed sources of income in each of the financial years, even though his basic contention is that such information and the amounts earned is irrelevant. I would have thought that, if the information in question was irrelevant, the appropriate way of dealing with it would have been to mask over the whole of the entries in each of the income tax returns relating to the non-Tweed earnings, including the names of the employers as well as the amounts of remuneration paid by such non-Tweed employers. It seems to me that, notwithstanding that explanation was made at the bar table by the respondent for this course as being an attempt by the respondent to demonstrate to the applicants that the material masked over was truly irrelevant as having come from non-Tweed employers, it nevertheless seems to me to be the case that, having elected to disclose part of the material which it is asserted is irrelevant, the applicants are entitled to inspect the full entry. In short, I think that the respondent in question, by adopting the course he has, has waived any right to immunise from disclosure any information in the tax returns relating to employment and earnings from non-Tweed employers and sources of income.
The second matter that leads me to the conclusion that I should order unedited inspection is that the material in question may well ultimately have to be disclosed at the hearing, given the kind of cross-examination that can be anticipated will be directed to this particular respondent.
This means that the material that has been edited out may ultimately turn out to be relevant.
I will therefore make an order in each action that by 4 p.m. on 8 October, 1992 the respondent John Samuel Patrick Williams produce to the solicitors for the applicants for inspection the original unedited pages of each of the income tax returns for the period 1972 to 1991 listing all that respondent's income, that is, the names of all employers and all amounts of income earned from such employers.
I certify that this and the preceding
five pages is a true copy of the
reasons for judgment herein of the
Honourable Mr. Justice Drummond.
Associate:
1 , '7
Date: October, 1992
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