Case: Attorney-General (NT) v Kearney and Northern Land Council [1985] HCA 60 ; (1985) 158 CLR 500
Outcome: applied
It was put on behalf of Devereaux to the AAT that there was a reasonable suspicion that the relevant tax official had made a finding of tax avoidance by evasion for the improper purpose of seeking to extend the time limits imposed by s 170(2) of the Income Tax Assessment Act 1936 (Cth) and that the legal advices were procured for the purpose of, or utilised in the course of, effecting that improper purpose, although it was not suggested that counsel were complicit. Devereaux has a formidable task to establish this ground. The AAT referred to the relevant authority Attorney-General (NT) v Kearney and Northern Land Council [1985] HCA 60 ; (1985) 158 CLR 500 and then went on to reject the argument, giving detailed reasons for that conclusion. What is more, the AAT considered in detail the evidence given by the tax official said to have been motivated by the improper purpose and accepted his evidence, that being inconsistent with any finding of the alleged improper purpose. 23 The written submissions for Devereaux pointed to a number of features of the facts and circumstances which, it was contended, showed that the AAT was wrong. Counsel for Devereaux went through the facts in great detail during the hearing. Indeed, he unsuccessfully sought to tender further evidence. If accepted, the written and oral submissions for Devereaux might establish that the AAT was wrong in its conclusion that the exception did not apply. That is essentially a question of fact. In my opinion, the arguments advanced on this point would be appropriate if there were a full appeal from the AAT to the Court but there is not. I could detect no question of law in relation to which the AAT erred on this aspect of the case. The correct principle was identified and sought to be applied. There is no merit in the suggestion that the correct standard of proof was not applied. The appropriate standard was laid down in Kearney [1985] HCA 60 ; 158 CLR 500, the authority applied by the AAT. There is no reason why a party charged with improper conduct cannot confront that charge and defeat it, as occurred here. 24 The appeal will be upheld and the decision of the AAT that the Commissioner must give Devereaux access to the withheld documents, or (where relevant) parts thereof, in accordance with Part Q of the reasons for decision, is set aside. As I have held that there is only one reasonable conclusion, there is no point in remitting the matter to the AAT. In lieu of the AAT's decision, access to the withheld documents should be refused. The cross-appeal is to be dismissed. Devereaux is to pay the Commissioner's costs of the application and cross-appeal. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 29 May 2007 Counsel for the Applicant/Cross-Respondent: Mr A Robertson SC, Ms M Kennedy SC, Mr RM Niall Solicitor for the Applicant/Cross-Respondent: Australian Government Solicitor Counsel for the First Respondent/Cross-Appellant: Mr JW Durack SC, Ms RL Seiden, Mr JH Momsen Solicitor for the First Respondent/Cross-Appellant: Becwell Legal Services Pty Limited Dates of Hearing: 11, 12 and 13 December 2006 Date of Judgment: 29 May 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/821.html