The Commissioner of Taxation v Atherton [2007] FCA 1569

FEDERAL COURT OF AUSTRALIA

The Commissioner of Taxation v Atherton [2007] FCA 1569 PRACTICE AND PROCEDURE – consideration of a guillotine order – consideration of compliance with the order – consideration of whether the order ought to be varied

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 Comcare v Foster (2006) 226 ALR 749 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 THE COMMISSIONER OF TAXATION v JONATHAN ATHERTON QUD229 OF 2007

GREENWOOD J

5 OCTOBER 2007

BRISBANE IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD229 OF 2007

BETWEEN: THE COMMISSIONER OF TAXATION

Applicant

AND: JONATHAN ATHERTON

Respondent

JUDGE: GREENWOOD J

DATE OF ORDER: 5 OCTOBER 2007

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The time fixed in paragraph 1 of the Order of Justice Spender dated 1 October 2007 for the provision of the list of documents referred to in paragraphs 1 and 2 of the Order of Justice Spender dated 29 August 2007 ("the 29 August order") be extended until 4 pm on 12 October 2007. 2. The respondent, by 4 pm on 12 October 2007, provide to the applicant's solicitor one list of documents, in compliance with paragraph 2 of the 29 August order, incorporating: (a) each document the subject of a claim for legal professional privilege identified in: (i) the list contained in Annexure "MEL-6" to the affidavit of Michelle Elaine Lindley filed on 3 October 2007 ("Ms Lindley's affidavit"); (ii) the further list contained in Annexure "MEL-12" to Ms Lindley's affidavit; (iii) the further list contained in Annexure "JMH-19" to the affidavit of Jane Maree Hale sworn on 5 October 2007; and (b) any further document contained in the list of files unable to be accessed (contained in Annexure 'MEL-11' to Ms Lindley's affidavit) in respect of which legal professional privilege is claimed. 3. Each of the documents the subject of this Application, other than the following documents, be released to the applicant on Tuesday 9 October 2007: (a) those documents identified in the lists referred to in paragraph 2(a) of these orders which are the subject of a claim for legal professional privilege; (b) the documents identified in the list referred to in paragraph 2(b) of these orders. 4. If the respondent fails to provide the list in accordance with paragraph 2 of these orders by 4 pm on 12 October 2007, then in the absence of any order to the contrary made before that time and date, all remaining documents the subject of this Application be released to the applicant forthwith. 5. If the respondent provides the list in accordance with paragraph 2 above of these orders by 4 pm on 12 October 2007, all documents identified in the list referred to in paragraph 2(b) of this order which are not the subject of a claim for legal professional privilege are to be released to the applicant forthwith. 6. The respondent pay the applicant's costs of and incidental to this Application to be taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.