UO ween - - De she case at we responce me de sponée: re and Cc Ws oO ol ren 1. "os ephone el - . € g¢ ct € - - c's no ncen Oo a4 a eC ent oO a Sem sations w - - conve e becaus LD2 '0 rey > " o haw ort "of fi 'U cu roceecings. ery - —— = - STAN BARRY Ne. - J. Decembe dney G202 9 eckson th Sackson J. al jeSy IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G202 of 1986 GENERAL DIVISION BETWEEN: BARRY STANLEY JOHN O'KEEFE Applicant AND: DEPUTY COMMISSIONER OF TAXATION Respondent CORAM: JACKSON J. DATE: 16th December 1986 PLACE: Sydney REASONS FOR JUDGMENT These are proceedings in which the applicant seeks an order of review under the Administrative Decisions (Judicial Review) Act 1977 in respect of the decision of the respondent to apply for summary judgment against the applicant in proceedings numbered 17465 of 1985 in the Supreme Court of New South Wales. In that action the respondent claims an amount of $214,890.26 being income tax and additional tax payable in accordance with notices of assessment issued on 14th September 1)84 in respect of the years ended 30th June 1980, 30th June IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G202 of 1986 GENERAL DIVISION BETWEEN: BARRY STANLEY JOHN O'KEEFE Applicant AND: DEPUTY COMMISSIONER OF TAXATION Respondent CORAM: JACKSON J. DATE: 16th December 1986 PLACE: Sydney REASONS FOR JUDGMENT These are proceedings in which the applicant seeks an order of review under the Administrative Decisions (Judicial Review) Act 1977 in respect of the decision of the respondent to apply for summary judgment against the applicant in proceedings numbered 17465 of 1985 in the Supreme Court of New South Wales. In that action the respondent claims an amount of $214,890.26 being income tax and additional tax payable in accordance with notices of assessment issued on 14th September 1)84 in respect of the years ended 30th June 1980, 30th June 1981 and 30th June 1982. The amount of the claim is the balance after taking into account two payments totalling $197,000.90 which were made earlier this year, and to which I shall return. -t is convenient, before turning to the arguments on behalf of the applicant, to deal first with an argument which was advanced on behalf of the respondent, namely that there was no re.evant "decision" by or on behalf of the respondent. The argument was not that the decision to apply for summary judgment was not a decision under an enactment but rather that the decision had not been made by the respondent but by someone in the office of the Australian Government Solicitor, the solicitor acting on behalf of the respondent. I do not accept the argument. Exhibit 4 in the proceedings is a letter dated 27th June 1986 from the respondent to the Australian Government Solicitor in which the respondent states, inter alia:- "In response to the Supreme Court Statement of Claim which was filed on 31 October 1985 and served on 6 May 1986, a defence has been lodged. You are requested to act on behalf of this office and take all action you consider necessary to have the Defence struck out and iudgment entered if the debt is not paid." It was said that this was to do no more than to give authority to the Australian Government Solicitor to apply for summa ty judgment if the Australian Goverment Solicitor should so decide. I do not think that the letter bears so narrow a construction. It seems clear that the letter was intended to give instructions (thus involving a decision) to apply for summary judgment as well as giving authority so to do. Even if it were no more than the conferral of authority so to act, that involved in my view a decision on the part of the respondent to take that action, if the Australian Government Solicitor also thought it appropriate to do so. I turn then to consider the ground which was argued on behalf of the applicant. That ground was that the decision to apply for summary judgment was a "routine" decision, taken without consideration of the merits of the particular case, and in particular without consideration of the fact that the applicant had made the payments totalling $197,000.00. The argument was put in two ways, first that the payments to which I have referred were not taken into account at all, and secondly that the fact that the payments were made in pursuance of the arrangement to which I shall refer below was not taken into acccant. The first approach bases itself on passages in the cross-examination of Mrs Mason, a Supervisor in the Recovery Section of the respondent's Sydney office. Mrs Mason did not deal personally with this applicant or his representative in the matter after 13th January 1986, although she was aware of events until the end of the next month. She gave evidence that another unit in the Recovery Section, a unit not under her control, was responsible for "actu. lly suing for the tax". She was asked what was the practice of the Recovery Section concerning recovery following the filing of a defence in proceedings to recover the tax and said:- "When we receive a defence from a defendant on a writ we have served we usually write instructions out for AGS telling them we have issued a Summons and that a writ has been - we have received a defence on the matter. We then write up instructions and refer it to the AGS for their action. We normally ask that they have the judgment - take action, whatever action is necessary, to set the judgment aside, but then they --- HIS HONOUR: Not to set the judgment, to get judgment, you mean? --- Well, to get judgment to set the defence aside but then it is really up to them whether they think it is appropriate to do so. They then take the matter on from there. MR SLATER: And when you say you normally ask them to take such action as they think fit to get judgment is that a matter which is a matter of policy, a general understanding between yourself and the govenment solicitor or is it a request which you make specifically in each case? --- It is a policy. It is a general thing that is done as soon as a defence is lodged. Did you make such a request in these proceedings? --- I believe we did. I have not looked through the recovery papers. There is a copy of a letter to that effect to the Australian Government Solicitor. I was not involved in that decision but a copy of the letter is on file." The letter to which she referred was Exhibit 4 and the cross-examination continued:- "So the person or persons who drafted this letter to your knowledge did not have any dealings with either Mr O'Keefe or Mr Clyne. Is that correct?---Yes, that would be correct. Is it correct also that so far as you are concerned what happened after it left your hands was a matter of routine for the recovery section and the Australian Government Solicitor?---Yes, that is right. Once a defence is lodged it is routine procedure to instruct the Australian Government Solicitor unless something else we were not previously aware of becomes apparent." It is impossible, it seems to me, to draw the conclusion from those paragraphs that what was involved was the application of a fixed procedure without reference to the facts of the particular case. The evidence to which I have referred shows no more than that instructing the Australian Government Solicitor to apply for judgment is the course "normally" taken, it is a "policy", a "general thing that is Gone" when a defence is lodged, and it is done "unless something we were not previously aware of becomes apparent". In my view the evidence of Mrs Mason to which I have referred does not support the first basis relied on. Nor is that contention supported by reference to Exhibit 4. The letter sets out under the heading "BACKGROUND INFORMATION" the follcwing:- "Assessments of Income Tax for years ended - 30 June 1980 issued on 14 September 1984 30 June 1981 issued on 14 September 1984 30 June 1982 issued on 14 September 1984 and are subject to legal action. Objections were lodged against the above assessments i within the 60 day period in respect of the * disallowance of a number of Claims of which some are scheme related. Notices of Determination issued on 27 June 1985 for 1980 and 1981 disallowing the objection in full and on 11 July 1985 the 1982 objection was allowed to the extent that the Section 226(2) penalty was remitted. Appeals against the decisions were lodged on 5 November 1985 and are currently under review. The taxpayer was contacted by phone on 15 October 1985. He stated that he was unable to pay the outstanding tax in a lump sum but was prepared to pay by instalments and wuld attend for an interview to discuss arrangements. The tax agent attended for an interview on 22 October 1985 but it ended with no result and a Supreme Court Statement of Claim issued on 31 October 1985. In the taxpayer's letter of 28 January 1986 the taxpayer offered to pay $75,000 forthwith and a further payment of $122,000 on or before 30 June 1986 providing no further recovery action is taken prior to the determination by a Board of Review, however he was advised that this offer was unacceptable. The Summons was returned unserved on 6 March 1986 as the two copies which were sent for service were not sworn by a Justice of the Peace. It was decided that legal action should be continued and a Summons amended pursuant to Part 20 Rule 8 issued on 1 April 1986. This was served on 9 May 1986. On 20 May 1986 the taxpayer's solicitors filed a Notice of Appearance, and a Notice of Grounds of Defence. The taxpayer's solicitors then lodged an application pursuant to Section 13 and s 5 of the Administration (sic) Decisions (Judicial Review) Act on 28 May 1986. Since the issue of the Summons, payments of $75,000 and $122,000 have been received." The terms of the letter appear to me to indicate that a decision was being made in relation to the facts of the particular case, and that the decision to apply for summary judgment was made in the knowledge that $197,000.00 had been paid. The second basis on which the decision was attacked was, as I have said, that it did not take into account the arrangement said to have been arrived at between the applicant and the respondent earlier in 1986, that arrangement being on the applicant's case that if the applicant paid the sums of $75,000.00 and $122,000.00 at the times to which I shall refer, further legal action would not be taken pending the resolution of his objections to the assessments in question. It may be noted immediately that Exhibit 4 does refer to an arrangement proposed by the applicant for the payment of $197,000.00 on account on the basis that no further action would be taken to recover the balance pending the determination of the applicant's objections by a Board of Review. One would be entitled to infer from that that the "arrangement" - to the extent that there was one - had been taken into account, the letter stating in effect of course that the "arrangement" was in fact no more than a proposal, because the applicant had been notified that it was not acceptable. It was contended, however, that the letter misstated the situation, because the true position was that the respondent's conduct had been such as to show that an arrangement of the nature proposed by the applicant had been accepted by the respondent. In dealing with that contention it is necessary to look to the events which took place on and after 3rd January 1986. The applicant had appointed Mr Peter Clyne to act as his agent in dealings with the respondent and on the 3rd January 1986 Mr Clyne wrote to the respondent stating inter alia that:- "In these circumstances, and to avoid any unnecessary litigation, Mr O'Keefe has asked me to suggest that $75,000 should be paid forthwith, on the understanding that no recovery proceedings will be commenced until the Board of Review has dealt with the objections. For his part, he has asked me to offer an undertaking that everything will be done on our part to obtain a speedy hearing before the Board of Review, which in any event (so the Chairman tells me) is able to deal with matters much more speedily than before. The $75,000 is immediately available; and I would be grateful if you would obtain instructions and let me know whether your department is willing to accept payment on the basis I have outlined." As Mrs Mason's affidavit shows it was made clear to Mr Clyne at a meeting that day that the offer of $75,000.00 was not acceptable. Mr Clyne then intimated that the applicant might be able to pay $75,000.00 forthwith and another $75,000.00 by the end of June. In the event Mr Clyne telephoned Miss Fai in the Recovery Section and she noted that:- "Dr Clyne rang & advised that T/P willing to pay $75,000 forthwith & $75,000 on 30.6.86 on the understanding that no further recy action be taken until the Board of Review hearing. He will put the proposal in writing & deliver to me." Mr Clyne then wrote on 7th January as follows:- "Purther to our recent discussion, and our telephone conversation of today's date, I confirm that my client has instructed me to tender you the sum of seventy-five thousand dollars ($75,000), and to undertake that a further seventy-five thousand dollars ($75,000) will be paid on or before the 30th June 1986. These payments are tendered on account of moneys claimed for the years ended 30 June 1980, 1981, 1982, 1983 and 1984, and without prejudice to the objections that are being referred to the Board of Review. They are tendered also on the understanding that subject to my client complying with the above undertaking no recovery action will be taken until the Board of Review has dealt with the five assessments in question, and given its decision. My client and I wili do everything reasonably possible to bring on the Board of Review hearings as quickly as possible, and to try and reach agreement on some of the factual issues in dispute. Your department is invited to co-operate with us in that regard. It is obviously in the interest of both sides that these disputes should be finalized as soon as is practicable. Please advise me as soon as you can whether this proposal is acceptable, and if so I will make an appointment to call in and deliver the first payment of $75,000." 10. A note made by Miss Fai records that on 8th January after discussing the matter with her supervisor she rang Mr Clyne and advised him that the proposal was unacceptable and that legal action would proceed. Miss Fai's note also records that a discussion took place with Mr Clyne about how he arrived at a figure of $150,000 for "scheme" tax owing. It seems that after some discussion Mr Clyne, according to Miss Fai, "came to the same conclusion as I did on Folio 52", which seems to mean that he came to a conclusion that the "scheme" tax owing was a total of $196,532.91. The reference to "scheme" tax appears to be a reference to Taxation Ruling IT/2156 (Exhibit D before me) which came into operation on 6th May 1985 and gave to the respondent's officers, in relation to collection and recovery of unpaid tax due in respect of an artificial scheme of tax avoidance, instructions which were more stringent than the instructions which were to apply where there was a "genuine" dispute about whether the tax was payable. Miss Fai''s note records, in a somewhat delphic manner, that "Negotiations appear to be finalised." I have referred ea-lier to the events which occurred on 3rd January. It was clear from those events, and also from the terms of Mr Clyne''s letter of 7th January that it had not been indicated to Mr Clyne on 3rd January 1986 that an offer of two payments of $75,000.00 cash would be acceptable to the ll. respondent. Notwithstanding that, Mr. Clyne wrote on 9th by i January 1986 as follows:- "Following previous discussions, I attended at your office on the afternoon of Friday, Jan. 3, and tendered a cheque for $75,000 together with a written proposal, which was (in brief) that this cheque was tendered on the understanding that no recovery proceedings would be commenced until the Board of Review had determined the five references under discussion. I was informed by Miss Roslyn Pai, and her colleague (a Miss O'Keefe), that this proposal was not acceptable, but it would be accepted if my client undertook to pay a further $75,000 on or before the 30th June 1986. After obtaining my client's instructions, I advised Miss Fai by phone on Tuesday, Jan. 7 that your department's counter proposal was acceptable to my client. It seems to me that at this point of time our negotiations had become binding on both parties. However, Miss Fai advised me yesterday (Jan. 8) that the department now requires $75,000 forthwith, and an undertaking to pay a further $124,000 by June 30; and that if we do not accept these terms, a writ will be issued. As Mr O'Keefe has left this matter in my hands, I am taking the responsibility of advising you that my client will not pay more than he was asked to pay. I think he would regard this as a matter of principle. Accordingly you are advised that $75,000 is available for immediate payment to your department; that a further $75,000 will be paid on or before the 30th June 1986; but that this payment and undertaking are tendered on the condition offered by officers of your department and accepted by my client, i.e. that no recovery action will be taken until the Board of Review has dealt with the references. If proceedings are in fact commenced, these will be defended on the ground that you are bound by the agreement we made; and alternatively, a stay of proceedings will be sought on terms identical to those which both sides have accepted in this matter. But if this becomes necessary, costs will be sought against you. 12. I would like to suggest, with respect, that you re-consider this matter. Up to the present time, your department has approached the dispute with courtesy and reasonableness; so, I suggest, has my client. But it is very difficult to negotiate if an offer, once made and accepted, is then withdrawn. If a writ is to be issued, I would request that you give me some notice, so that we can instruct a firm of solicitors who will accept service. However, Mr O'Keefe will be back on Jan. 28, and perhaps we could make one more effort to resolve the matter when he returns. But for the time being, at the risk of repeating myself, I wish to make it quite clear that in my view, when your counter proposal was accepted on Jan. 7, an agreement came into existence which is binding on both sides, and that my client remains willing to abide py it." Neither Mr Clyne nor Miss Fai was called to give evidence. I accept, however, Mrs Mason's evidence that on 3rd January 1986 Mr Clyne did not make an offer to pay a total of $150,000.00 but said that he would need to speak to the applicant before doing so. In these circumstances I am not prepared to find, as the letter of 9th January asserts, that it was indicated to Mr Clyne on 3rd January that payments totalling $150,000.00 by 30th June would be acceptable. I am also not prepared to find that during the discussions which took place on 8th January Miss Fai informed Mr Clyne that the respondent now required "$75,000 forthwith, and an undertaking to pay a further $124,000 by June 30; and that if we do not accept these terms, a writ will be issued". I think it likely, as I have said, that there was discussion about the amount of "scheme tax", and that a figure of about j $197,000.00 (not $199,000.00) was discussed, but! I am not 13. prepared to find that Miss Fai said that payments totalling that amount would be acceptable. The letter of 9th January was followed by another of 10th January which enclosed a cheque for $75,000.00, and said:- "Purther to previous discussions and correspondence, it occurs to me that the payment of $75,000 should be tendered in fact; at this point of time. Accorcingly I enclose my client's cheque, payable to the Deputy Commissioner of Taxation, drawn on the King & Castlereagh Street Branch of Westpac, numbered 698547, for the sum of seventy-five thousand dollars ($75,000). My client has instructed me to give an undertaking that he will pay you a further sum of seventy-five thousand dollars ($75,000) on account of taxes Claimed for the years ended 30 June 1980, 1981, 1982, 1983 and 1984 on or before the 30th June 1986. The cheque is tendered on the following terms:- THAT, subject to my client complying with the above undertaking, you will not take any recovery action in relation to taxes claimed for the said years until the objections relating to the said years have been heard and determined by the Board of Review. The cheque is tendered conditionally upon your acceptance of these terms. If the said terms are not acceptable, you are required to return the cheque to me on or before the 17th January 1986. If the cheque is banked, or not returned to me on or before that date, this will be an acceptance of the terms I have outlined. To ensure that there are no further misunderstandings, I have indorsed the cheque as follows:- "THIS CHEQUE IS ACCEPTED ON THE TERMS SET OUT IN DR PETER CLYNE'S LETTER OF 10/1/86." I adhere to the view that a binding agreement exists between you and Mr O'Keefe, as set out in my letter of January 9. This agreement will be pleaded whether or not you accept the cheque. But the cheque is 14. being tendered because I do not want it to be suggested later that my client did not strictly perform his part of the agreement." The cheque for $75,000.00 was returned at the direction of Mrs Mason with a "With Compliments" slip stating "As advised 8/1/86 - offer unacceptable". Undeterred by the rebuff, Mr Clyne wrote to the respondent on 15th January acknowledging receipt of the returned cheque and stating:- "We seem to have reached an impasse; and I will seek Surther instructions when Mr O'Keefe gets back on Meanwhile, would you be kind enough to confirm, in writing, that $75,000 now and $122,000 by June 30 would be acceptable, and that if Mr O'Keefe agrees to those terms no further action will be taken until the Board of Review has dealt with the five years in question. Your prompt advice would be appreciated." On 28th January, there having been no response to that letter, Mr Clyne spoke to Miss Fai and told her that the applicant was prepared to pay $197,000.00 by 30th June 1986 and that he wished to arrange an interview for the next week to discuss the matter. Mr Clyne also sent a letter of the same date in which he stated:- "Purther to previous discussions and correspondence, I do think we have now reached agreement, but I wish to make sure that there is no further misunderstanding. My client is willing to pay $75,000 forthwith, and a further $122,000 on or before the 30th June 1986, totalling $197,000, provided you undertake not to take any recovery action in relation to tax claimed for the years ended 30th June 1980, 1981, 1982, 1983 and 1984 until the Board of Review has heard and determined the current references. 15. Please let me know in writing whether this offer is acceptable to you, in which case I will make an appointment to bring in a cheque for $75,000." On 4th February Mr Clyne spoke to Miss Fai by telcphone and asked if the new offer had been received. Miss Fai's note of the telephone conversation is as follows:- "I advised that it was rec'd, however it fails to mention late payment penalties. Mr Clyne stated that he believed we had reached an acceptable proposal at our last meeting. I stated that Raeleen Mason had advised him that we required a proposal for LPP as well as PIF of Scheme TID. He stated that if we requested further amts, T/P would not pay anything «& thus force "unnecessary" litigation. I stated I would discuss matter with Mrs Mason & advise." Miss Fai then discussed the proposal with Mrs Mason and her note records that it was agreed that it was not acceptable, there being no provision made for late payment penalties. My Clyne and Miss Fai spoke again the next day, the 5th, and Miss Fai's record of the conversation is as follows:- "Peter Clyne rang & stated that he had sent the chq for $75,000. I advised that we may need to send it back as the proposal was unacceptable, as we had to consider equity with other t/ps, etc. & we are requiring PIF by them. He stated that it was not necessary to return the chq, as the dept could bank it & send a letter stating the proposal is ; unacceptable. He said that T/P is willing to pay the $75,000 & a further $122,000 in June & if a writ issues "so be it". He did advise that if a writ issued, they would seek a stay of proceedings & in considering the stay the court would merely consider whether the T/P was reasonable in attempting to 16. negotiate & he feels that they have been quite reasonable, & therefore will be granted a stay. I advised that I had not rec'd the chq as yet. He said he sent it by courier this morning & to let him know if it is not rec'd." That conversation was followed by a letter from Mr Clyne dated 5th February in which he said:- "we have now reached agreement, and it may assist both sides if I recapitulate the situation as I see it:- 1. Some of the claim relates to travel expenses and outgoings re'*ted to Johnny O'Keefe. These are not really in dispute, except in the sense that they need to be properly proved by the taxpayer; and your department has always accepted that in relation to these matters there is no need for pre-payment. 2. The remainder of the claim, approximately $197,000, relates to a number of investments. The relevant losses and outgoings were disallowed, and we dispute the correctness of your decision to disallow them. 3. No one suggests that these investments are "artificial and contrived schemes" within the meaning of Mackey v. D.F.C.T., 82 A.T.C. 4571 4. You keep talking about "schemes", but the word is yours, not ours. Take films, for instance, A person invests in a film, relying on your department's written assurance that such outgoings will be allowed, and will not be attacked under Part IVA. Later your department changes its mind, and does attack the claim to deductibility under Part IVA. You may turn out to be right, or we may turn out to be right, but the dispute has nothing to do with a "scheme". 5. In those circumstances, it seems wrong to insist on pre-payment, and as you know it is proposed to challenge the: validity of Sections 177 and 201, but in the present case we offered a compromise ($125,000 by June 30); you made a counter-offer ($197,000 by June 30) and we have accepted that counter-offer. i Pursuant to our agreement that subject to the above payments no recovery action will be taken until the relevant matters have been heard and determined by i 17. the Board of Review, I now enclose my client's cheque for $75,000; and on my client's instructions I undertake that a further $122,000 will be paid on or before the 30th June 1986." On 10th February a further telephone conversation took place between Mr Clyne and Miss cai, Miss Fai''s note of the conversation being as follows:- "Peter Clyne rang & asked if we had rec'd the chq of $75000. I replied we had & a letter has been drafted & will be sent to him shortly." There is no evidence of any letter having been sent. To complete the history of the matter I should say that on 19th May 1986 the applicant sent to the respondent a cheque for the $122,000.00 under cover of a letter saying:- "Enclosed is my cheque for $122,000 bringing my payments up to $197,000 as arranged." Before dealing with the substance of the matter I should deal with a question of evidence which arose in connection with the notes made by Miss Fai to which I have referred, and which I reserved for further consideration. Objection was taken to the use of those notes as evidence of the truth of their contents. It was conceded that the documents would otherwise be admissible for that purpose by reason of s.7B(1) of the Evidence Act 1905 as being a record of a "business" (see the extended definition of that term in s. 7A(1)) but it was contended that they were rendered inadmissible by reason of s.7C(1) which provides that:- 18. "(1) A statement is not admissible under section 7B in a proceeding if it was made or obtained for the purpose of, or in contemplation of, any judicial or administrative proceeding." The expressions "for the purpose of" and "in contemplation of" appear to me to be used in order to cover documents which were made or obtained either in order to be used in, or bearing in mind the possibility that they might be used in, judicial or administrative proceedings. I am not satisfied that Miss Fai's notes were made in circumstances attracting either of those possibilities. I think that the situation is simply that they were made in order to record, for her supervisors, and for the records of the respondent as a whole, dealings which she had with taxpayers and persons acting for them. The situation which then arises is that Mr Clyne asserted in his letter of 5th February 1986 that he had made an oral arrangement with Miss Fai. Miss Fai's notes of the conversations do not record any such arrangement. Neither Mr Clyne nor Miss Fai has given evidence and I am not prepared in the circumstances to find that such an arrangement was arrived at. The applicant bears the onus of proof on this issue, and has failed. Further, I am not satisfied that the failure to contradict the assertion of an arrangement, together with the 19, payments of $75,000.00 and $122,000.00, gives rise to an arrangement in any way binding the respondent. All that has occurred is that the applicant offered to pay the sums totalling $197,000.00 if the respondent would not proceed further in the proceedings to recover the tax, the offer was not accepted, but the $197,000.00 was paid anyway. There is no reason in my view why the respondent's decision to apply for summary judgment should be set aside under the Administrative Decisions (Judicial Review) Act, and esos Cercicial Review) Act I decline to do so. The application is refused, I certify that this and the 18 preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Jackson. Associate: Ditbanchelierg Date: 16th December 1986 Counsel for the applicant: Mr B.W. Walker Solicitors for the applicant: Clayton Utz Counsel for the respondent: Mr A.H. Slater Solicitors for the respondent: Australian Government Solicitor Date of hearing: 4th December 1986 CATCHWORDS ADMINISTRATIVE LAW - application for an ord i e gecision to apply for summary judgment - whether decision by or on behalf of respondent - whether routine decision without respect to the facts of the case - whether arrangement between po applicant and respondent for payment of tax. EVIDENCE - whether respondent's notes of telephone conversations with agent of applicant admissible as Dusiness records - whether inadmissible becauc- made or obtained for the purpose cf or in contemplation of judicial or ° acéministrative proceedings. A@ministrative D ecisions (Judicial Review) Act 1977 §.5 Evidence Act 1905 ss. 73 8, 7B, 7C. BARRY STANLEY JOHN O'KEEFE v. DEPUTY COMMISSIONER OF TAXATION No. G202 of 1986 Jackson J. Jackson J. 16th December 1986 Sydney