Naismith v Mcgovern [1953] HCA 59

Naismith v Mcgovern [1953] HCA 59

Taxation prosecutions under Part VII of the Income Tax and Social Services Contribution Assessment Act 1936-1951, though penal in nature, are to be prosecuted according to the usual practice and procedure of the Court in civil cases. Accordingly, the defendant is entitled to an order for discovery against the Commissioner of Taxation, and s. 64 of the Judiciary Act 1903-1950 applies. It is not a valid objection that one party may be immune from an equivalent order; the Court may exercise discretion in making procedural orders under s. 237.

Parties
Appellant; Defendant: Herbert Arthur James Naismith; Respondent; Plaintiff: Patrick Silvester McGovern, Commissioner of Taxation
Jurisdiction
Australia
Judgment Date
11 September 1953
Procedural Posture
Appeal / On Appeal From the Supreme Court of Queensland
Outcome
appeal allowed
Legal Topics
Discovery in Civil Proceedings, Penal Actions, Application of Judiciary Act to Tax Proceedings
Tax Law Civil Procedure Discovery in Civil Proceedings Penal Actions Application of Judiciary Act to Tax Proceedings

Case Brief

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Parties

Herbert Arthur James Naismith

Appellant; Defendant

Patrick Silvester McGovern, Commissioner of Taxation

Respondent; Plaintiff

Procedural Posture

Appeal / On Appeal From the Supreme Court of Queensland

Legal Issues

  1. 1 Whether the defendant in a taxation prosecution under the Income Tax and Social Services Contribution Assessment Act 1936-1951 is entitled to discovery against the Commissioner of Taxation.
  2. 2 Whether such proceedings are civil or criminal for procedural purposes, especially relating to discovery.
  3. 3 Whether s. 64 of the Judiciary Act 1903-1950 applies to such proceedings.

Ratio Decidendi

Taxation prosecutions under Part VII of the Income Tax and Social Services Contribution Assessment Act 1936-1951, though penal in nature, are to be prosecuted according to the usual practice and procedure of the Court in civil cases. Accordingly, the defendant is entitled to an order for discovery against the Commissioner of Taxation, and s. 64 of the Judiciary Act 1903-1950 applies. It is not a valid objection that one party may be immune from an equivalent order; the Court may exercise discretion in making procedural orders under s. 237.

Court Disposition

appeal allowed

Orders

  • Order below set aside.
  • Plaintiff to comply with the notice of discovery within twenty-eight days after service of the order.