Case: ONE.TEL Ltd v Commissioner of Taxation (2000) 101 FCR 548
Outcome: distinguished
applicants rely on ONE.TEL Ltd v Commissioner of Taxation (2000) 101 FCR 548 (" ONE.TEL ") in which there was an application to set aside notices given by the Commissioner under s 108 of the Sales Tax Assessment Act 1992 (Cth) ("the STAA") requiring the addressee to provide the Commissioner with information. A Deputy Commissioner of Taxation gave approval under the Guidelines to the seeking of access. Burchett J held, at [42], that the Guidelines gave rise to a legitimate expectation that the Commissioner would act in conformity with them. He held that the Commissioner was not at liberty to depart from them (except in such an urgent case as might arise if there were grounds for fearing destruction of the documents), without giving the person concerned an opportunity to make out a case why the Commissioner should not do so. The applicants rely heavily on the decision of Burchett J in ONE.TEL . That case concerned an application to set aside notices issued under s 108 of the STAA. That section provided: (1) The Commissioner may direct a person ... (a) to provide the Commissioner with such information as the Commissioner requires; ... for the purpose of enabling the Commissioner to apply the sales tax law in relation to the person, or in relation to any other person. Section 109 of the STAA provided that for the purposes of the sales tax law, an authorised officer was entitled to full and free access to documents at all reasonable times, and might inspect, examine, copy, or take extracts from, any document. The Commissioner had issued "Guidelines for the Exercise of Access Powers in Relation to Accountants' Papers" ("the guidelines"). The title and the content were not identical with those of the Guidelines, but the substance of them was similar. Under the guidelines, a decision was made approving of access to certain documents of external accountants on the basis that exceptional circumstances existed. Burchett J stated (at [42]) that the formality and detail of the guidelines and the nature of their subject matter strongly suggested that the guidelines created a legitimate expectation that the Commissioner would not depart from them without giving the person affected an opportunity to make out a case as to why he should not do so. In the event, however, his Honour stated that there had been no breach of natural justice in the circumstances. His Honour also rejected (at [45]) a submission that the decision granting access was so unreasonable that no reasonable person could have made it. His Honour's reference to natural justice and to unreasonableness suggest that he may have been thinking in terms of s 5(1)(a) and s 5(1)(e) and (2)(g) of the AD(JR) Act, although he did not refer to that Act. The report of ONE.TEL is in fact a report of his Honour's reasons for judgment in three proceedings brought by ONE.TEL Ltd against the Deputy Commissioner of Taxation NG 120 of 1998, NG 449 of 1998 and NG 33 of 1999. It is only the last that is of present relevance, in which the application was made for review of: the decision or the conduct of the respondent made on or about 15 December 1998 to give approval for officers of the Commissioner of Taxation to have access under section 109 of the [STAA] to documents in the possession of the applicants. In oral submissions in that case, senior counsel for the Deputy Commissioner said that the reference to "conduct" had been included in case the view should be taken that the only relevant decision was the decision to issue the notice under s 108 of the STAA. In that case, so it was said, the antecedent decision to lift the concession was conduct that led to the making of that decision. In the present case the decision to allow access is attacked as a "decision" alone. ONE.TEL Ltd asserted that it was aggrieved by the decision because it purported to give approval to officers of the Commissioner to have access under s 109 of the STAA to "restricted source" and "non-source" documents in breach of the guidelines. The application also referred to a breach of the rules of natural justice or procedural fairness, and to other grounds mentioned in s 5 of the AD(JR) Act. The Deputy Commissioner filed a notice of objection to competency on the grounds that the decision to give approval for access was not a decision made "under an enactment" and was also not "conduct", within the meaning of the AD(JR) Act. However, his Honour's reasons do not expressly refer to the objection to competency. In particular, they do not address the contention that the decision was not "made under an enactment". It is difficult to know what to make of his Honour's reasons because they do not, with respect, expose clearly what the field of contest was in relation to the guidelines and the decision to lift the concession made under them, that his Honour was addressing. The respondents submit that ONE.TEL is distinguishable because the decision to approve access was connected with the exercise of a statutory power, namely, the power given to the Commissioner by s 108 of the STAA to direct a person to produce documents to the Commissioner. I agree. In the present case, the decision to approve of access is a precursor of the exercise of a power that O 33 r 14 of the FCRs confers, not only on the Commissioner, but on all litigants before this Court. As the issue as to competency was not addressed in Burchett J's reasons, I do not regard his Honour's decision as standing in the way of my giving effect to the view that I have formed.