Commissioner of Taxation of the Commonwealth of Australia v Schokker, Hank Bernard & Anor [1996] FCA 1065

LIMITED DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA ) ) WESTERN AUSTRALIA DISTRICT REGISTRY) ) GENERAL DIVISION ) No: WAG 46 of 1996 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT B E T W E E N: COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Appellant - and - HANK BERNARD SCHOKKER AND JACQUELINE M SCHOKKER Respondents CORAM : BLACK CJ, LEE and CARR JJ PLACE: PERTH DATE : 17 OCTOBER 1996 REASONS FOR JUDGMENT THE COURT: This is an application for leave to appeal from a decision of R D Nicholson J made on 30 August 1996 in which his Honour refused a motion by the Commissioner of Taxation ("the Commissioner") to have the principal application summarily dismissed. The principal application was filed by the respondents on 7 May 1996 and was described simply as an "application for an order of review". The application was prepared and filed by the respondents

in person and it lacked the precision to be expected of an application prepared by a competent legal practitioner who had had the opportunity of distilling a client's instructions. At all material times, the male respondent, Mr Schokker, was employed in the Australian Taxation Office. On 2 January 1996 the respondents wrote to the Commissioner making various allegations, the principal of which was as follows: "I am being persecuted by the illegal activities of the senior members of the ATO in Cannington. There are at least 5 senior officers at the Cannington ATO who have committed several separate breeches (sic) of secrecy provisions in relation to my, my wife's and my daughter's income tax affairs, and used this information and the misuse of ITAA access provisions to conduct an enquiry into my personnel file." His Honour pointed out in his reasons that two principal categories of breach of secrecy were alleged in the letter. The first was the use by the special audit manager, in a personnel inquiry, of information concerning possession by Mr Schokker of blank medical certificates when the information was said to have come into his possession in consequences of a notice served pursuant to s264 of the Income Tax Assessment Act 1936 (Cth) ('the ITA') on the Western Australia Police. Secondly, it was alleged that the auditor also made extensive use of confidential and personal information concerning Mr and Mrs Schokker and their daughter's income tax audits to conduct a personnel evaluation of the leave entitlement of Mr Schokker under the Public Service Regulations. In substance, the application filed in the Court alleged that in response to this complaint the Commissioner had decided that "no prosecution action against audit staff for these alleged breaches will be instituted". The application did not contend expressly that the Commissioner was