Case: Engler v Commissioner of Taxation [2002] FCA 226
Outcome: referred to
In Engler v Commissioner of Taxation [2002] FCA 226 , delivered on 8 March 2002, French J described the proceedings in the following way (at [3] [5]): 'On 18 June 2001, Claudia Charlotte Engler and Jeffrey Kenneth Gates commenced proceedings in this Court against the Commissioner of Taxation. On the basis of affidavits accompanying their application they seek declaratory relief that various notices and amended notices of assessment issued to them under the ITAA are void, these being: 1. Amended Notices of Assessment issued to Engler on 24 September 1998 relating to the financial years ended 30 June 1992, 1993, 1994, 1995 and 1996 and a Notice of Assessment issued on the same date for the year ended 30 June 1997. 2. A Notice of Amended Assessment issued to Gates on 15 September 1998 and relating to the financial year ended 30 June 1992. They also seek declaratory relief that "any Nil Tax Advices issued by the Commissioner to Gates on or about 15 September 1998 are void". Orders apparently by way of injunction are sought that the Commissioner "be permanently stopped from reviewing the Applicants on any issue that has been reviewed in the past again" and "from reviewing the Applicants' taxation affairs from the year ended 30 June 1997 and backwards". A declaration is sought that a Notice of Assessment issued by the Commissioner on or about 6 November 1996 was a proper assessment in accordance with the ITAA and is proof that reviews of the applicants' taxation affairs commenced by the Commissioner on or about 7 April 1995 were concluded prior to 6 November 1996 in accordance with the ITAA. Other orders are sought that the Commissioner, if reviewing the applicants in the future, must adhere to the principles outlined in the Taxpayers' Charter and in the law and that from the date of the filing of the application the applicants and any other business or entity in which they become involved should be classed as restricted access taxpayers. A claim is also made for unspecified "losses and damages and costs".' 19 In the course of deciding that the application should be struck out, French J made the following observations (at [54]): 'Contentions that certain of the assessments are void for having been issued for an improper purpose may enliven the jurisdiction of the Court under s 39B of the Judiciary Act 1903 (Cth). These contentions are to be found in pars 9, 11, 13 and 15 of the application. There is however, on my reading of the points of claim, little exposed in the way of facts which would support a case of improper purpose or want of bona fides. Paragraphs 18 and 19, as the Commissioner contends, do not specify the alleged breach of natural justice. As to pars 20 and 21, the broad brush assertions in the points of claim as to the various species of misconduct attributed to the Commissioner and his officers do not disclose facts sufficient to ground the tort of misfeasance in public office or negligence. That is not to say that on the facts apparent from the chronology and some of the matters raised in the points of claim the applicants may not have had cause to complain about the way in which and the efficiency with which their affairs have been handled in the ATO. But that of itself is not enough to establish a cause of action.' 20 French J gave the applicants leave to file an amended application.