Winter v Deputy Commissioner of Taxation [1987] FCA 344

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NOT CONSIDERED SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY No. G.490 of 1986

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GENERAL DIVISION

BETWEEN: WINTER

Applicant

AND:

DEPUTY COMMISSIONER OF TAXATION

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J. In this matter Mr. Downes raised a jurisdictional question as to the scope of the power of this Court under s.23 of

the Federal Court of Australia Act 1976. I think it is most

convenient if I put that to one side and consider' the

discretionary question.

Mr. Flick says that the ambit of the application for an order of review is sufficiently wide to call in itself for consideration whether the respondent should be permitted to act further upon the subpoenas which have been issued in the Supreme Court for the production of documents, since Mr. Flick says that the whole of the proceedings in the Supreme Court may be rendered futile by the decision of this Court. It is conceded by him,

however, that I would have to weigh that consideration against

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the suggestion raised in the evidence of the respondent, to the extent that I accept that suggestion, of course, that there may have been some impeding of the investigation by the Commissioner, and some obstruction to his access to some documents. Mr. Flick then proceeds to point out that at the heart of the Supreme Court proceedings is the validity of the contested assessment. He says that the Mareva injunctions which have already been granted in the Supreme Court offer the Commissioner protection, but, of course, those injunctions are for a fixed period only, and in relation to the particular matters the subject of the current

orders.

It is pointed out that some distinction can be drawn between those subpoenas pursuant to which documents have been produced, and at least so far as the particular documents are concerned have the protection of the custody of the Court, and those subpoenas under which documents have not yet been produced. What is sought by the applicant's notice of motion is an order restraining the respondent or any of his officers from calling upon, or taking any further action in relation to, subpoenas issued to Olga Winter, Rita Winter, Henry Winter, Sarosa Pty Limited, Ilerace Pty Limited and Vimair Pty Limited in Supreme Court proceedings between the Deputy Commissioner of Taxation and Henry Victor Winter and others, no. 16020 of 1986, until the proceedings in this Court are finally determined; and further an order restraining the respondents or any of his officers from inspecting documents produced on subpoena by Messrs Baker and MacKenzie and Messrs Ferrier and Company, Solicitors, until these