Edelsten, G.W. v. Wilcox, C.R. & Anor [1988] FCA 294

Edelsten, G.W. v. Wilcox, C.R. & Anor [1988] FCA 294

The Commissioner's revocation of previous s.218 notices and substitution of notices requiring 100% attachment of the applicant's income was made without proper regard to current, investigated facts about the applicant's financial situation, ignored the existence of a genuine dispute as to tax liability, and constituted an unreasonable exercise of power that no reasonable person could have made. The Commissioner failed in his duty to act fairly and to consider relevant matters; the decisions are to be set aside.

Parties
Applicant: Geoffrey Walter Edelsten; First Respondent: Charles Robert Wilcox; Second Respondent: Commissioner of Taxation
Jurisdiction
Australia
Judgment Date
20 June 1988
Procedural Posture
Judicial Review / Final Judgment
Outcome
Decisions to revoke earlier notices and issue the notices of 7 July 1987 are set aside; reinstatement of notices of 23 December 1986, subject to adjustment of parties' rights regarding relevant payments and estate.
Legal Topics
S.218 Notices, Collection and Recovery of Tax, Judicial Review, Natural Justice, Legitimate Expectation, Discretion of Commissioner, Unreasonableness, Failure to Take Account of Relevant Matters
Income Tax Administrative Law S.218 Notices Collection and Recovery of Tax Judicial Review Natural Justice Legitimate Expectation Discretion of Commissioner +2 more

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Parties

Geoffrey Walter Edelsten

Applicant

Charles Robert Wilcox

First Respondent

Commissioner of Taxation

Second Respondent

Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 Commissioner's duty to act fairly under s.218 of the Income Tax Assessment Act
  2. 2 Whether decision to revoke and reissue s.218 notices was unreasonable in the Wednesbury sense
  3. 3 Whether Commissioner failed to take account of relevant matters regarding applicant's financial position and genuine dispute as to liability

Ratio Decidendi

The Commissioner's revocation of previous s.218 notices and substitution of notices requiring 100% attachment of the applicant's income was made without proper regard to current, investigated facts about the applicant's financial situation, ignored the existence of a genuine dispute as to tax liability, and constituted an unreasonable exercise of power that no reasonable person could have made. The Commissioner failed in his duty to act fairly and to consider relevant matters; the decisions are to be set aside.

Court Disposition

Decisions to revoke earlier notices and issue the notices of 7 July 1987 are set aside; reinstatement of notices of 23 December 1986, subject to adjustment of parties' rights regarding relevant payments and estate.

Orders

  • Decisions of 7 July 1987 to revoke and reissue s.218 notices are set aside as at and from their date, subject to further orders.
  • Declaration of parties' rights regarding monies payable after 7 July 1987 under Health Insurance Commission claims by Dr. Edelsten, and monies held by Commissioner/Health Insurance Commission, subject to bankruptcy trustee application.