JMA Accounting Pty Ltd & Entrepreneur Services Pty Ltd v Carmody [2004] FCA 896 (Orders)

JMA Accounting Pty Ltd & Entrepreneur Services Pty Ltd v Carmody [2004] FCA 896 (Orders)

Section 263 did not authorise the exclusion of the applicants or their employees from the premises nor from access to documents while access was being exercised, nor the copying of documents subject to legal professional privilege absent agreement by the occupiers; however, minor failures in the procedure for recognising privilege or initially over-broad copying did not, on the facts, invalidate the exercise of power because there were adequate arrangements for asserting privilege and no permanent harm resulted.

Parties
Applicant: JMA Accounting Pty Ltd; Applicant: Entrepreneur Services Pty Ltd; First Respondent: Michael Carmody, Commissioner of Taxation of the Commonwealth of Australia; Second Respondent: Kevin Fitzpatrick, First Assistant Commissioner of Taxation of the Commonwealth of Australia; Third Respondents: Greg Daly, Nathan Pain, Employees of the Australian Public Service; Fourth Respondents: Colin O'Gorman, William Carpenter, Noel Devar, Kate Firey, Colin O'Gorman, Antonio Galliostro, Christian Bernat, Employees of the Australian Public Service
Jurisdiction
Australia
Judgment Date
09 July 2004
Procedural Posture
Administrative Law Application for Judicial Review / Reserved Judgment
Outcome
Declarations to be made concerning unauthorised exclusion from premises; no orders quashing access or requiring return of documents; further orders and costs to be dealt with after hearing submissions.
Legal Topics
Commissioner's Powers of Access, Legal Professional Privilege, Judicial Review, Procedures for Asserting Privilege
Taxation Administrative Law Commissioner's Powers of Access Legal Professional Privilege Judicial Review Procedures for Asserting Privilege

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Parties

JMA Accounting Pty Ltd

Applicant

Entrepreneur Services Pty Ltd

Applicant

Michael Carmody, Commissioner of Taxation of the Commonwealth of Australia

First Respondent

Kevin Fitzpatrick, First Assistant Commissioner of Taxation of the Commonwealth of Australia

Second Respondent

Greg Daly, Nathan Pain, Employees of the Australian Public Service

Third Respondents

Colin O'Gorman, William Carpenter, Noel Devar, Kate Firey, Colin O'Gorman, Antonio Galliostro, Christian Bernat, Employees of the Australian Public Service

Fourth Respondents

Procedural Posture

Administrative Law Application for Judicial Review / Reserved Judgment

Legal Issues

  1. 1 Whether Commissioner has power under s 263 of the Income Tax Assessment Act 1936 (Cth) to exclude occupiers from premises
  2. 2 Whether copying of documents including potentially irrelevant documents can be for purposes of the Act
  3. 3 Whether Commissioner can dictate procedure for claiming legal professional privilege

Ratio Decidendi

Section 263 did not authorise the exclusion of the applicants or their employees from the premises nor from access to documents while access was being exercised, nor the copying of documents subject to legal professional privilege absent agreement by the occupiers; however, minor failures in the procedure for recognising privilege or initially over-broad copying did not, on the facts, invalidate the exercise of power because there were adequate arrangements for asserting privilege and no permanent harm resulted.

Court Disposition

Declarations to be made concerning unauthorised exclusion from premises; no orders quashing access or requiring return of documents; further orders and costs to be dealt with after hearing submissions.