Vereker, J.M. & Ors v. Rodda, P.J. . Forsyth, N.H. v Rodda, P.J. & Anor [1987] FCA 140

Vereker, J.M. & Ors v. Rodda, P.J. . Forsyth, N.H. v Rodda, P.J. & Anor [1987] FCA 140

The Magistrate applied an incorrect legal test by relying on 'interim rights' of the Commissioner without determining whether the NIPAG scheme was inefficacious, thereby failing to address whether the Commonwealth was in fact deprived of lawful entitlement. As a result, the committal decisions must be set aside and remitted for reconsideration according to law.

Parties
Applicant: John Michele Vereker; Applicant: Ian Douglas Swansson; Applicant: John Terrence Brown; Applicant: Leslie Edward Lithgow; Applicant: Stephen Gerard Connell; Applicant: Neil Harry Mark Forsyth; Respondent: Philip John Rodda; Respondent: Richard Denis O'Donovan
Jurisdiction
Australia
Judgment Date
01 April 1987
Procedural Posture
Application for Order of Review Under S.5 Administrative Decisions (judicial Review) Act 1977 / Review of Magistrate's Committal Decision
Outcome
Decisions of the first respondent set aside; matter remitted for further hearing and determination in accordance with reasons for judgment
Legal Topics
Committal Proceedings, Conspiracy to Defraud, Taxation Schemes, Order of Review, Incitement and Aiding Conspiracy, Counsel Participation, Prosecutorial Conduct, Defrauding Commonwealth, Execution of Tax Law
Administrative Law Criminal Law Committal Proceedings Conspiracy to Defraud Taxation Schemes Order of Review Incitement and Aiding Conspiracy Counsel Participation +3 more

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Parties

John Michele Vereker

Applicant

Ian Douglas Swansson

Applicant

John Terrence Brown

Applicant

Leslie Edward Lithgow

Applicant

Stephen Gerard Connell

Applicant

Neil Harry Mark Forsyth

Applicant

Philip John Rodda

Respondent

Richard Denis O'Donovan

Respondent

Procedural Posture

Application for Order of Review Under S.5 Administrative Decisions (judicial Review) Act 1977 / Review of Magistrate's Committal Decision

Legal Issues

  1. 1 Whether the Magistrate applied the correct legal test for committal under s.56(1)(b) of the Magistrates (Summary Proceedings) Act 1975
  2. 2 Whether 'interim rights' of the Commissioner of Taxation prior to assessment constitute sufficient interest for defrauding the Commonwealth
  3. 3 Whether a scheme must be found inefficacious before liability to defraud arises

Ratio Decidendi

The Magistrate applied an incorrect legal test by relying on 'interim rights' of the Commissioner without determining whether the NIPAG scheme was inefficacious, thereby failing to address whether the Commonwealth was in fact deprived of lawful entitlement. As a result, the committal decisions must be set aside and remitted for reconsideration according to law.

Court Disposition

Decisions of the first respondent set aside; matter remitted for further hearing and determination in accordance with reasons for judgment

Orders

  • The decisions of the first respondent be set aside
  • The matter be remitted to the first respondent for further hearing and determination in accordance with the reasons for judgment