Allen Allen & Hemsley v. Deputy Commissioner of Taxation & Anor [1988] FCA 231

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IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY

No. G.921 of 1988

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GENERAL DIVISION

BETWEEN: ALLEN ALLEN & HEMSLEY

Applicants

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DEPUTY COMMISSIONER OF TAXATION

First Respondent

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ROBERT LINDSAY FITTON

Second Respondent EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

In this matter, the applicants seek interlocutory relief by way of an order restraining the respondents, by their servants or agents, from seeking access to the 1981 trust account records of the applicants until further order of the Court. The applicants are a well known firm of solicitors, and it is also well known that they are an extremely large firm of solicitors. The respondents are the Deputy Commissioner of Taxation and a

taxation officer.

The respondents seek access to the trust account records pursuant to s.263 of the Income Tax Assessment Act 1936, and some

of the issues raised in the case appear to bear some similarity

2.

to issues which were raised in the recent Full Court decision in Sharp v. Deputy Federal Commissioner of Taxation (1988) 88 A.T.C. 4259. A significant difference is that the applicants are a firm of solicitors, and questions of legal professional privilege arise. A matter of similarity is that, in this case also, the records to which access is sought are said not to be clearly related to the taxation affairs of identified clients, and indeed the applicants say that the particular matter, to check which they were advised access was required, is a matter they have checked themselves, and they have ascertained that there are no records answering the description put to them by the first respondent's officer. That of course does not mean in itself that the Deputy Commissioner is not entitled to check by his own

officers the accuracy of what he has been told.

The decision was made to have access to the solicitors' trust accounts on or about 27 October last. As a result of the raising of questions of legal professional privilege, and of other matters, and communications between the parties, implementation of that decision has been delayed; but the Deputy Commissioner has indicated he wishes to have access on Monday,