Wilhelm v McKay [2007] FCA 367

FEDERAL COURT OF AUSTRALIA

Wilhelm v McKay [2007] FCA 367

PRACTICE AND PROCEDURE – application for leave to amend an application for an Order of Review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) – consideration of leave to join a party to the Application for an Order of Review.

ADMINISTRATIVE LAW – consideration of whether a challenged decision is a decision of an administrative character made or required to be made under an enactment for the purposes of s 3(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – consideration of whether a decision by an officer of the Australian Taxation Office to swear and apply for a search warrant pursuant to s 3E of the Crimes Act 1914 (Cth) is such a decision.

TAXATION – consideration of whether the Commissioner has the power to conduct an investigation of conduct on the part of a taxpayer having its expression in the commission of criminal offences under the Criminal Code Act 1995 (Cth) ('Criminal Code') in connection with a taxation matter.

Judgment

Leave to amend and leave to join a party refused with costs.

Legislation

Corporations Act 1989 (Cth) Income Tax Assessment Act 1936 (Cth) Crimes Act 1914 (Cth) Administrative Decisions (Judicial Review) Act 1977 (Cth) Judiciary Act 1903 (Cth) Criminal Code Act 1995 (Cth) Taxation Administration Act 1953 (Cth) Australian Federal Police Act 1976 (Cth) Federal Court Rules, Order 13, rule 2; Order 6, rule 8 Griffith University Act 1998 (Qld) Judicial Review Act 1991 (Qld) National Crime Authority Act 1984 (Cth) Summary Offences Act 1953 (SA) Income Tax Assessment Act 1997 (Cth) Crimes (Taxation Offences) Act 1980 (Cth)

Authorities

Wilhelm v McKay [2005] FCA 792 - cited Jilani v Wilhelm [2005] FCAFC 269; (2005 – 2006) 148 FCR 255 - quoted Williams v Keelty (2000) 111 FCR 175 - quoted R v Rogerson (1992) 174 CLR 268 - cited Re Preston [1985] AC 835 - cited Leggo Australia Pty Ltd v Paraggio (1994) 52 FCR 542 - quoted Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 - cited Queensland v JL Holdings Pty Ltd (1996 – 1997) 189 CLR 146 - quoted Anisminic Ltd v Foreign Compensation Commission (1969) 2 AC - cited Craig v South Australia (1995) 184 CLR 163 - cited Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 - quoted Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 - cited Griffith University v Tang (2005) 221 CLR 99 - quoted Salerno v National Crime Authority (1997) 75 FCR 133 - cited Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission (2001) 113 FCA 230 - cited Guss v Commissioner of Taxation (2006) FCAFC 88; (2006) 152 FCR 88 - cited Hutchins v Deputy Commissioner of Taxation (1996) 136 ALR 153 - cited Carmody v Mackellar (1997) 76 FCR 115 - quoted Rogers v Moore (1992) 39 FCR 201 - quoted Puglisi and Another v Australian Fisheries Management Authority and Others (1997) 148 ALR 393 - quoted Price v Elder and Others (2000) 97 FCR 218 - quoted Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 - cited Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 - cited Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 116 ALR 535 - cited