White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511

FEDERAL COURT OF AUSTRALIA

White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511

INCOME TAX – Commissioner published guidelines to effect that he would concede confidentiality in respect of, and deny himself access to, certain advising papers of external accountants, unless he or an officer of a certain rank of the Australian Taxation Office ("ATO") should decide that there were "exceptional circumstances" – in proceedings before the Court, being appeals under Part IVC of the Taxation Administration Act 1953 (Cth), taxpayers gave discovery, and claimed that certain documents discovered were covered by the "accountants' concession" within the guidelines – officer of appropriate rank within the ATO decided that there were exceptional circumstances, and approved of access to the documents – different ATO officer caused a notice to produce the documents to issue to taxpayers – taxpayers issued this present proceeding challenging the senior officer's decision allowing access, under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("AD(JR) Act") and under s 39B(1) and (1A) of the Judiciary Act 1903 (Cth) ("Judiciary Act") – application for summary dismissal of proceeding based on suggested incompetency of present application – whether decision to allow access was a "decision of an administrative character made ... under an enactment" – whether guidelines were "an enactment" – scope of "matter … arising under any laws made by the Parliament" within s 39B(1A)(c) of Judiciary Act – test for summary dismissal under s 31A of the Federal Court of Australia Act 1976 (Cth) – meaning of "no reasonable prospect of success" – Held: application summarily dismissed in relation to claim based on AD(JR) Act, but not in relation to claim based on Judiciary Act.