Case: Smorgon v Australia and New Zealand Banking Group Ltd [1976] HCA 53 ; (1976) 134 CLR 475
Outcome: cited
applicants submitted that the view that s 251G did not prescribe a topic which permitted the production of information was supported by three authorities: Smorgon v Australia and New Zealand Banking Group Ltd [1976] HCA 53 ; (1976) 134 CLR 475 ; Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 ; O'Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1. The notice was addressed to Armstrong Scalisi Holdings Pty Ltd. The applicants contended that a notice could not be addressed to a corporation but only to its proper officer. In truth, there were two submissions here; one, a submission that a notice could not be served upon a corporation; the other, that if it was, it had to be addressed to the corporation's proper officer. These arguments are, so it seems to me, quite without substance. It has been accepted that a corporation cannot be required physically to attend and give evidence for the very good reason that it is an abstraction lacking physical form: Smorgon v Australian and New Zealand Banking Group [1976] HCA 53 ; (1976) 134 CLR 475 at 481-482 per Stephen J. However, that physical constraint has no impact on the ability of a corporation to answer questions. It is for that reason well established that a corporation may be required to provide information. Indeed, Lockhart J described the contrary argument as "fallacious" in Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 at 198, an observation with which I respectfully agree. Burchett and Hill JJ also rejected the argument (at 203 and 218 respectively). The power in reg 168(2) is subject to a limitation in the case of subparagraph (a) that the information sought relates to "an application or other matter before the Board" and, in the case of subparagraph (b) that "in the opinion of the Board" it so relates. It is common ground that the notice does not recite the matter which is before the Board or any opinion by the Board about such a matter. The applicants cited Smorgon as authority for the proposition that a failure to specify the matter meant the notice was invalid. Reliance upon Smorgon is, I think, misplaced. In that case Stephen J did uphold the challenge to the validity of a subparagraph of a notice issued under s 264 which sought "all other books, papers, writings and other documents concerning the said matters which are in your custody" (at 490). The "matters" were not defined in the notice but it was shown that they were the assessments of the incomes of various taxpayers. The recipient of the notice was a bank. The language of "matters" was drawn directly from the words of the latter part of s 264. Stephen J said (at 491): It follows that I would not regard a notice which did no more, by way of requiring production of documents, than to repeat the words of the latter part of s 246(1)(b) as an effective exercise of the Commissioner's power. These words describe the ambit of that power but do not provide a suitable formula for insertion in a notice. Such notice, given in exercise of the power, must instead specify with some degree of particularity, as do pars (i) to (vii) of the notice to the Bank, what documents are being sought. Failing this there will be no valid requirement. I do not think that this passage provides support for an argument that a notice must specify the relevant matter. To the contrary, it cautions against careless recitation of language of the provision. Severance