IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION BETWEEN: BETWEEN: JUDGE MAKING ORDER: DATE OF ORDER: WHERE MADE: THE COURT ORDERS THAT: On the applicants' WAG 2049, 2050, 2052, bes LIMITED DISTRIBUIDONMENT NO. coscd emmmoeoe, ; Nos. WAG 2049 and 2050 of 1987 WESTERN AUSTRALIAN CAPITAL INVESTMENT CO. LTD Applicant and THE COMMISSIONER OF TAXATION Respondent Nos. WAG 2052, 2054 and 2055 of 1987 GRANT HEATON JOHNSTON Applicant and THE COMMISSIONER OF TAXATION Respondent MINUTE OF ORDER RECFIVED FRENCH J. 04.3UL 1988 T OF 12 MAY 1988 FEDER STRALIA PRINCIPAL PERTH REGISTRY motion filed 5 May 1988 with respect to Nos. 2054 and 2055 of 1987:- 1. The respondent is to file and deliver on or before 19 May 1988 particulars of the date on which he considered the s.18({1)(b) matter and when he formed the opinion that vendors recoupment tax was likely to become payable. 2. No order as to costs. ee ee ee, . nn es Loy oe ener ny 2. On the respondent's motion filed 11 May 1988 with respect to No. WAG 2049 of 1987:- The applicant do on or before 19 May 1988 provide an answer to request 3 of the respondent's request for further and better particulars of amended points of claim dated 9 February 1988. No order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. ore . owt n> ep cree ee IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION LIMITED DISTRIBUTION Nos. WAG 2049 and 2050 of 1987 BETWEEN: WESTERN AUSTRALIAN CAPITAL INVESTMENT CO. LTD Applicant and THE COMMISSIONER OF TAXATION Respondent Nos. WAG 2052, 2054 and 2055 of 1987 BETWEEN: GRANT HEATON JOHNSTON Applicant and THE COMMISSIONER OF TAXATION Respondent CORAM: FRENCH J. 12 MAY 1988 EX TEMPORE REASONS FOR JUDGMENT ON PROVISION OF PARTICULARS There are before the Court this morning, five motions seeking, from the Commissioner of Taxation, further particulars in connection with appeals 2049, 2050, 2052, 2054 and 2055 of 1987. The applicants are Western Australian Capital Investments Co. Ltd in respect of 2049 and 2050, and Grant Heaton Johnston in respect of 2052, 2054 and 2055. The appeals all relate to notices of assessment served on the applicants pursuant to the provisions of the Taxation (Unpaid Company Tax) Assessment Act ("TUCTA Act"), aan wenn ae ee eee In each case, and pursuant to the power of the Court to give directions for the purpose of defining the issues, I had directed in these proceedings that points of claim and a_ response be filed by the parties. This was done. Subsequently, the points of claim were amended and a response to the amended points of claim was filed by the Commissioner. In their points of claim, the applicants have alleged, inter alia, that at no time, prior to the issue of the TUCTA Act assessments, Gid the Commissioner address his mind to the matters set out in sub-para.18(1)(b) of the TUCTA Act and was' therefore not in the position to, and did not, in fact, form the opinion that vendors recoupment tax was likely to be payable by any person or persons. Sub-section 18(1) of the Act provides:-— "Where — (a) under the Assessment Act, the Commissioner is required or permitted to serve a notice of assessment on a company in relation to the liability of the company to pay ordinary company tax or undistributed profits tax in relation to a year of income; and {b) vendors recoupment tax is payable, or the Commissioner is of the opinion that vendors reecoupment tax is likely to become payable, by a person or persons in relation to ordinary company tax or undistributed profits tax, as the case may be, that is payable or may become payable by the company in relation to that year of income, the notice shall, notwithstanding section 174 of the Assessment Act, be served on the company by being served on — (c) where the vendors recoupment tax is payable, or in ay gor tie + Saas toupee a eee the opinion of the Commissioner, is likely to become payable, by only one person —- that person; and (d) in any other case - any of the persons referred to in paragraph (b), and, where the notice is served in accordance with paragraph (d), the Commissioner shall serve a copy of the notice on each person (other than the person on whom the notice was served) who is included in the representative class in relation to the vendors recoupment tax." On the face of it, the deemed service is subject to conditions precedent, specified in, inter alia, sub-para. 18(1)(b). The Commissioner has denied the allegation that he failed to address his mind to the matters set out in sub-para. (b), and accepts that, by that denial, he impliedly asserts that he did address his mind to them. The request for further particulars of that response seeks particulars of:- "(i) the date on; (ii) the place at; and (iii) the manner in, which the respondent considered the Section 18(1)(b) matters." And further asks:- "(b) When did the respondent form the opinion that the vendors recoupment tax was likely to become payable?" and meee ee enon yc oarag te toc ose eee eee yo , 4. "(c) Set out the grounds relied upon by the respondent in forming such opinion." By his answer, the Commissioner objected to providing the particulars requested on the basis that the request was in the nature of a request for evidence rather than for particulars of material facts. The object of the exercise of providing points of claim and response, and particulars thereof, is to define the issues between the parties. It is not to extract evidence, or assist a fishing expedition. In my opinion, the request is legitimate, insofar as it seeks particulars of the times at which the relevant opinions were formed -— that being, in truth, an elaboration of the implied assertion contained in para.4 of the Commissioner's response. As to the manner in which the respondent considered the s.18(1)(b) matters and the grounds relied upon by him in forming his opinion, these seem to me to be matters of evidence, and not by way of elaboration of the implied assertion and not necessary for defining the issues as between the parties. I will, therefore, be prepared to make an_- order requiring particulars of the date on which the Commissioner considered the matters under para.18(1)(b) and when he formed the opinion that the vendors recoupment tax was likely to become payable. we nn ee ee tee os re rrr ee ee rr 5. As to para.3 of the request for particulars, in all but Appeal 2052, the request is directed to determining whether the Commissioner relies only upon the deemed service under s.18(1) as found in liability, or whether he alternatively or additionally relies upon actual service on the company itself. Mr Windsor, for the Commissioner, has today made clear to the Court that the Commissioner relies upon, and only upon, the deemed service under sub-s.18(1) in each case. Having regard to that statement, there is no need to direct the particulars sought under para.3 of the request, and that is conceded by the applicant. I certify that this and the preceding four (4) pages are a true copy of the Ex Tempore Reasons for Judgment of his Honour Justice French. Associate: otercl Us ke Date: 12.s. SF Counsel for the Applicants: Mr S. Paterniti Solicitors for the Applicants: Messrs. Parker & Parker Counsel for the Respondent: Mr G.J. Windsor Solicitors for the Respondent: Australian Government Solicitor Date of Hearing: 12 May 1988 megs rene wee ye nee ee a ee ee ee eas wee wee - . : 12 May 1988 Date of Judgment