Case: Government of India v Taylor [1955] AC 491
Outcome: referred to
So far as the United Kingdom is concerned, the consensus between the parties was that, though provision is made by and under the Foreign Judgements (Reciprocal Enforcements) Act 1933 (UK) for the registration of, materially, judgments of this Court or of the Supreme Court of a State, an exception prevails in respect of "a sum payable in respect of taxes or other charges of a like nature" (see s 1(2)). That being so and having regard to Government of India v Taylor [1955] AC 491 , it was common ground that a judgment obtained here in respect of a revenue debt could not be enforced in the United Kingdom. Accepting this though, the conclusion reasonably to be drawn on the whole of the evidence that existed when the DPO was made was that the prospect of Mr Pattenden's returning to the United Kingdom for anything other than short term visits was remote. Further, there was no evidence that he had any assets of any significance in that country. 96 There was no evidence before me as to the position which prevails in relation to the enforcement of an Australian revenue debt in Vanuatu. If there were some benign feature of the law there that would permit the enforcement of an Australian revenue debt judgment there it was for Mr Pattenden to prove that. Mr Pattenden does, it seems, have assets there, but the impression reasonably to be formed on the evidence of his situation in May this year was that, in his retirement, he is increasingly likely to spend less time there than he does in New Zealand. Mr Pattenden's physical presence in Australia can have no effect on the position which prevails under Vanuatu law in relation to the enforcement of an Australian revenue debt judgment. 97 So far as New Zealand is concerned, it appears that the common law public policy against the enforcement of a foreign revenue debt judgment as described in Government of India v Taylor has been reversed by domestically enacted treaty. In 2006 the TAA was amended so as to include in Sch 1 a new Div 263 "Mutual assistance in the collection of foreign tax debts": s 3 and Sch 1, item 8, International Tax Agreements Amendment Act (No 1) 2006 (Cth). The new Division makes provision for bilateral enforcement treaties for tax debts. The first country with which Australia entered into treaty relations for bilateral enforcement of tax debts was New Zealand. This was achieved by the inclusion of a newly numbered Article 27 into the Double Taxation Agreement between the two countries. That Protocol was included in Schedule 4A to the International Tax Agreements Act 1953 (Cth) by the International Tax Agreements Amendment Act (No 1) 2006 (Cth). The Protocol entered into force on 22 January 2007. Any Australian revenue law judgment in respect of Mr Pattenden's Australian tax liability could be enforced in New Zealand against assets which he has there. 98 Mr Pattenden's history is one of attending requests made by the ATO for interviews. He has known that he and companies in the ACBF Group were the subject of increasing scrutiny by the ATO for some five years. He had ample opportunity, prior to the making of the amended assessments in January 2008, to depart Australia permanently and to send his wealth abroad. One might reasonably apprehend that he could have adopted a like attitude to divorce proceedings here. There is no evidence that he did. For all of that time, he has held a British passport. Notwithstanding this, he has resisted the temptation either to "flee" there (to adapt the language of the ATO in the DPO submission) or to retire there. Instead, the only temptation to which he has succumbed is to retire to New Zealand, a country in which the recovery of Australian tax is readily possible. 99 Further, in terms of assets against which recovery in respect of the liabilities noted in the schedule to the DPO might readily be possible, he has shares in the ACBF Group worth some $4M, a luxury unit at Runaway Bay (by inference on the available evidence worth in the order of $1M) and his residence in New Zealand.