Barnes v Commissioner of Taxation [2007] FCA 3

FEDERAL COURT OF AUSTRALIA

Barnes v Commissioner of Taxation [2007] FCA 3 EVIDENCE – legal professional privilege – communications including documents placed by applicants or their servants and agents with their legal advisors for the purpose of receiving legal advice on tax and financial matters – principles applicable to claim – objections to affidavit evidence – liberty to file supplementary affidavits of servants and agents in relation to hearsay the subject of objection – opportunity not taken – no discharge of onus on applicants to establish the privilege Evidence Act 1995 (Cth) s 135 Income Tax Assessment Act 1936 (Cth) s 263

Allen Allen and Hemsley v Commissioner of Taxation (1989) 20 FCR 576 AWB Limited v Honourable Terrence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 AWB Limited v Honourable Terrence Rhoderic Hudson Cole [2006] FCA 571 Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 Federal Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266 Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 Grant v Downs (1976) 135 CLR 674 Kennedy v Wallace (2004) 142 FCR 185 Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 Packer v District Commissioner of Taxation (Qld) [1985] 1 Qd R 275 Waugh v British Railways Board [1980] AC 521 JOHN ERIC BARNES and JUDITH ANGELA BARNES v COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA WAD 26 OF 2006

NICHOLSON J

9 January 2007

PERTH IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 26 OF 2006

BETWEEN: JOHN ERIC BARNES

JUDITH ANGELA BARNES

Applicants

AND: COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE: NICHOLSON J

DATE OF ORDER: 9 january 2007