ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270

FEDERAL COURT OF AUSTRALIA

ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270

PRACTICE AND PROCEDURE – COSTS – rule as to costs where a proceeding terminates without a hearing – distinction between a termination leaving a clear winner and a termination because of a settlement or some supervening event rendering the issue in the litigation moot – question of the reasonableness of the conduct of the parties. SALES TAX – notice under s 108 of the Sales Tax Assessment Act 1992 directing a person to provide information – validity – uncertainty – question in form requiring the acceptance of assumptions – what is "information" – whether the Commissioner can require a task to be performed, as distinct from the mere provision of information – questions as to the basis of accounts – questions requiring the completion of a form accepting descriptions in it as approximately corresponding to the actuality – severance – application for extension of time to provide information until after the supply of reasons under s 13 of the Administrative Decisions (Judicial Review) Act – whether refusal was bad for unreasonableness – relevance of doubt as to validity of notice and policy of judicial review legislation – consideration of the Commissioner's Guidelines for the Exercise of Access Powers in relation to External Accountants' Papers – whether they give rise to a legitimate expectation that they will be complied with and that a person will be given an opportunity of arguing there is no exceptional circumstance – whether natural justice is attracted – what natural justice requires in such a case – whether a situation possibly calling for the application of the general anti-avoidance provisions could be seen as "exceptional" for the purposes of the Guidelines.

Sales Tax Assessment Act 1992, s 108 Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 discussed Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 followed Rizal v Minister for Immigration and Multicultural Affairs [1999] FCA 334 followed Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284 referred to Reddy v Hughes (1996) 37 IPR 413 referred to Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1999] FCA 119 referred to Australian Securities Commission v Berona Investments Pty Ltd (1995) 18 ACSR 772 referred to Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 referred to Ahmetaj v Minister for Immigration and Multicultural Affairs [1999] FCA 332 applied In re Stuart and Olivant and Seadon's Contract [1896] 2 Ch 328 referred to Insurance and Superannuation Commissioner v Robertson (1995) 30 ATR 239 referred to Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 applied Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513 applied FH Faulding & Co Ltd v Commissioner of Taxation (1994) 54 FCR 75 applied May v DFC of T (1998) 98 ATC 4960 applied Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1989) 91 ALR 363 applied MacDonald v Australian Securities Commission (No 2) (1994) 48 FCR 210 referred to ARM Constructions Pty Ltd v Commissioner of Taxation (1986) 10 FCR 197 applied Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 applied The Commissioner of Taxation of the Commonwealth of Australia v The Australia and New Zealand Banking Group Limited (Smorgon's case) (1979) 143 CLR 499 referred to Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648 applied Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 applied Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 referred to Deloitte Touche Tohmatsu v DFC of T (1998) 98 ATC 5192 referred to Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528 applied Commissioner of Taxation of the Commonwealth of Australia v Spotless Services Limited (1996) 186 CLR 404 referred to Hussien v Chong Fook Kam [1970] AC 942 applied Edelsten v Wilcox (1988) 83 ALR 99 referred to Carmody v MacKellar (1997) 76 FCR 115 referred to Gerah Imports Pty Ltd v Minister for Industry, Technology and Commerce (1987) 17 FCR 1 referred to Australian Broadcasting Tribunal v Bond Corporation Holdings Ltd (1989) 86 ALR 424 referred to Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287 referred to Sacharowitz v Minister for Immigration, Local Government and Ethnic Affairs (1992) 33 FCR 480 referred to ONE.TEL LIMITED & ORS v DEPUTY COMMISSIONER OF TAXATION NG 120 of 1998 NG 449 of 1998 N 33 of 1999 BURCHETT J 13 MARCH 2000 SYDNEY