Edelsten, G.W. v. Wilcox, C.R. & Anor [1988] FCA 294

NUDGMENT No. 2OCC om

CATCHWORDS

Income Tax ~ Judicial Review - notices under s.218 of Income Tax Assessment Act attaching the whole of all sums due to

medical practitioner by Health Insurance Commission in respect of "bulk Poilling" - nature of Commissioner's discretion under 8.218 — duty to act fairly - whether decision unreasonable in the Wednesbury sense - whether there was failure to take account of relevant matters (that the payments were almost the whole of the taxpayer's gross income required to meet both expenses of his practice and living expenses; and that there was a genuine non-scheme dispute as to liability to the tax assessed) - duty of administrator to act on the most current material available - failure to consider actual circumstances - reliance on paper exercises - effect of failure to call decision maker - whether there was denial of natural justice - legitimate expectation of opportunity of rebuttal - when, in principle, a legitimate expectation arises - effect on the court's discretion of events subsequent to the decision - ability of court to mould relief to ensure the applicant himself complies with his own relevant obligations - relevance of effect of grant or refusal of relief upon third parties.

Income Tax Assessment Act 1936, 5.218 Administrative Decisions (Judicial Review) Act 1977, s.16(1)(c) and (d).

Edelsten v. Wilcox & Commissioner of Taxation

NSW G. 328 OF 1987

Burchett J. Sydney 20 June 1988

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IN THE FEDERAL COURT OF AUSTRALIA ) )

NEW SOUTH WALES DISTRICT REGISTRY ) No. G.328 of 1987 )

GENERAL DIVISION )

BETWEEN: GEOFFREY WALTER EDELSTEN

Applicant AND: CHARLES ROBERT WILCOX First Respondent AND:

COMMISSIONER OF TAXATION

Second Respondent

REASONS FOR JUDGMENT

BURCHETT J.

On 22 April 1986, original assessments in respect of income tax for the years ended 30 June 1977 to 30 June 1985 inclusive in respect of the applicant, Dr. Geoffrey Walter Edelsten, were issued by the respondent, the Commissioner of Taxation, and were the subject of objections. On 8 October 1986, amended assessments issued in respect of the same years in a