The Shell Petroleum Company Ltd v Commissioner of Taxation [2005] FCA 982

FEDERAL COURT OF AUSTRALIA

The Shell Petroleum Company Ltd v Commissioner of Taxation [2005] FCA 982 PRACTICE AND PROCEDURE – review of order made for discovery – substantive dispute over nature of a gain on a share sale – whether gain on capital account or revenue account for taxation – whether documents of group of companies reorganising structure were discoverable. DISCOVERY – taxpayer a member of a group of companies – whether group documents discoverable – discussion of current criteria for discovery. Federal Court of Australia Act 1976, s 35A(5) Federal Court Rules, O15 r 2(3)

Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 366 followed Federal Coke v Federal Commissioner of Taxation (1997) 15 ALR 49 cited Federal Commissioner of Taxation v Lamesa Holdings BV (1997) 36 ATR 589 cited Federal Commissioner of Taxation v Myer Emporium Ltd (1986-1987) 163 CLR applied Federal Commissioner of Taxation v Whitfords Beach Pty. Ltd (182) 150 CLR 355 cited GRE Insurance Limited v Commissioner of Taxation (1992) FCR 160 distinguished Hampson v Federal Commissioner of Taxation (2003) ATR 521 cited Lamesa Holding BV v Federal Commissioner of Taxation (1997) 35 ATR 239 cited New Angel Court Ltd v Adam [2004] 1 WLR 1988 followed Nozzi Pty Ltd and Anor v FCT 52 ATR 521 applied Wellcome Foundation Ltd v VR Laboratories (Aust) Pty Ltd (1980) 42 FLR 266 not followed Williams v The Commissioner of Taxation of the Commonwealth of Australia (1972) 127 CLR 226 cited THE SHELL PETROLEUM COMPANY LTD v COMMISSIONER OF TAXATION VID 239 of 2004 CRENNAN J 21 JULY 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 239 OF 2004

BETWEEN: THE SHELL PETROLEUM COMPANY LTD (TFN 786 972 266)

APPLICANT

AND: THE COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA