San Remo Macaroni Co Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1998] FCA 610

FEDERAL COURT OF AUSTRALIA PRACTICE & PROCEDURE – discovery – Commissioner of Taxation - application for discovery of material before the decision maker at the time the determination was made by the Commissioner of Taxation – "fishing" Treasurer of the Commonwealth of Australia v CanWest Global Communications Corporation (30 June 1997, unreported) – followed Caltex Refining Co Pty Limited v The Amalgamated Metal Workers Union (6 December 1990, unreported) – cited WA Pines Pty Limited v Bannerman (1980) 41 FLR 175 - cited

SAN REMO MACARONI COMPANY PTY LTD V THE COMMISSIONER OF TAXATION OF THE

COMMONWEALTH OF AUSTRALIA

NG 27 of 1998

HILL J

SYDNEY

1 JUNE 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 27 of 1998

BETWEEN: san remo macaroni company pty ltd

(acn 007 543 544)

Applicant

AND: the commissioner of taxation of the commonwealth of australia

Respondent

JUDGE: HILL J

DATE OF ORDER: 1 JUNE 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The Respondent Commissioner on or before 13 July 1998 give discovery of all documents which were before the decision maker at the time of making the determination dated 19 December 1995, including any documents which were before the officer who prepared the report dated 27 October 1995 addressed to Mr Ian Cooper, Regional Coordinator, entitled "A report recommending that determinations under Division 13 of the Income Tax Assessment Act (1936) (sub section 136 AD(3)) be made in respect of the acquisition of pasta products by San Remo Macaroni Co Pty Limited (SRM) from a Swiss company 'Bigalle SA' " or other documents available to that officer in the course of preparing that report. "Documents" in this order means all documents whatsoever and, without limitation, includes correspondence, letters, memoranda, written communications, diary notes, reports, working papers, file notes, minutes, statements, invoices and also includes computer discs, computer tapes and any other form of electronic storage of information. 2. The applicant file and serve any affidavits upon which it proposes to rely on or before 22 June 1998. 3. The respondent file and serve any affidavits upon which it proposes to rely on or before 13 July 1998. 4. The matter be stood over until Wednesday 5 August 1998 at 9.30 am. 5. Any motions, which should only be filed after consultation between counsel, should be directed either at the Duty Judge or such other Judge as the Executive Assistant to the Chief Justice, Ms Carlsund, may nominate. 6. Costs be costs of the cause.