Deputy Commissioner of Taxation v Nicholls [2009] FCA 1002

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v Nicholls [2009] FCA 1002

PRACTICE AND PROCEDURE – search warrants – application for the further stay of orders allowing the inspection of documents – by filing a notice of appeal – Federal Court Rules ) 52 r 15(2) – extension of time to file notice of appeal not granted – therefore no notice of appeal – further ground of stay being that similar matter is before the Federal Magistrates Court Held: application dismissed Port of Melbourne Authority v Anshun Pty Ltd (1987) 147 CLR 589 cited DEPUTY COMMISSIONER OF TAXATION v ARTHUR CHRISTOPHER NICHOLLS

SAD 137 of 2008

LANDER J

25 AUGUST 2009

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION SAD 137 of 2008

BETWEEN: DEPUTY COMMISSIONER OF TAXATION

Applicant

AND: ARTHUR CHRISTOPHER NICHOLLS

Respondent

JUDGE: LANDER J

DATE OF ORDER: 25 AUGUST 2009

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT:

1. The application to stay the orders of Mansfield J made on 23 July 2009 be dismissed. 2. The respondent pays the applicant's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION SAD 137 of 2008

BETWEEN: DEPUTY COMMISSIONER OF TAXATION

Applicant

AND: ARTHUR CHRISTOPHER NICHOLLS

Respondent

JUDGE: LANDER J

DATE: 25 AUGUST 2009

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 On 23 July 2009, Mansfield J made orders allowing the Deputy Commissioner of Taxation to inspect documents seized by the Australian Federal Police and the Australian Tax Office from Mr Nicholls, at the time of execution of a search warrant on 6 May 2008. The search warrant had been issued by a Magistrate in this State on 5 May 2008. At the time his Honour made that order, he made a further order staying that order for inspection until hearing a determination of an appeal on SAD 138 of 2008. The issue before his Honour in relation to the application by the Deputy Commissioner of Taxation to inspect documents was whether or not the documents were subject to legal professional privilege. It was Mr Nicholls' contention that the application for inspection should be refused because all of the documents were subject to legal professional privilege. Mr Nicholls failed to make out his claim for legal professional privilege and so the order was made by his Honour. 2 The appeal, which was the reason for the making of the stay order on 23 July 2009, was an appeal to the Full Court of the Federal Court from orders made by Mansfield J on 15 January 2009. The issues with which he was concerned at that stage related to an application by Mr Nicholls to review decisions made by the Commissioner of Police and the Deputy Commissioner of Taxation, in relation to the issue of the search warrant on 5 May 2008 and its execution on 6 May 2008. On 15 January 2009, Mansfield J dismissed Mr Nicholls' application for review, both because it was incompetent and on the merits. 3 Mr Nicholls appealed from those orders and that was the appeal which came before the Full Court of the Federal Court and which was the reason why the stay order was made by his Honour on 23 July 2009. That was determined on 11 August 2009 and was dismissed. The Full Court dismissed the appeal giving ex tempore reasons upholding the reasons for judgment for the orders made by Mansfield J on 15 January 2009. Because that appeal has now been determined, the stay order which was made by Mansfield J on 23 July 2009 is no longer in force. That means, of course, that the Deputy Commissioner of Taxation is free to make the inspection which was the subject matter of the order made on 23 July 2009, unless there is some other impediment to the operation of his Honour's order. 4 On 21 August 2009 the applicant applied for a further stay of the orders made on 23 July 2009. The grounds of the application are to enable the respondent to file a notice of appeal from the orders of 23 July 2009, and for leave to file a notice of appeal out of time in relation to those orders. They were the only grounds identified in the notice of motion seeking a stay issued on 21 August 2009. Earlier today I heard the application for an extension of time within which to file and serve a notice of appeal from the orders made by Mansfield J and, for reasons given, dismissed that application. The application for the stay, therefore, based upon Mr Nicholls bringing an appeal from his Honour's orders of 23 July 2009, must be dismissed. 5 Mr Nicholls has said in other proceedings that he intends to seek special leave to appeal from the Full Court's decision given on 11 August 2009 from the High Court. However, he has not relied upon the fact of that application as a ground for a stay of the orders of 23 July 2009, nor could he in my opinion have done so, because he could not, I think, on any understanding identify a special leave point which would allow for the stay to be granted. 6 During the hearing of this application, Mr Nicholls sought to rely upon a further ground for the stay. In SAD 138 of 2008, Mr Nicholls made an application on 20 August 2009 for the stay of the orders made by Mansfield J on 15 January 2009. That application was accompanied by an affidavit in which he exhibited an application which he had made to the Federal Magistrates Court on or about 20 August 2009 seeking a further review of a number of decisions, including the decisions which were the subject matter of the proceeding before Mansfield J on 15 January 2009. He abandoned that application for a stay (rightly, in my opinion) because there was no order in fact to be stayed. The order made by Mansfield J on 15 January 2009 simply dismissed the application, so there was no point in seeking a stay. 7 However, he now purports to rely upon the fact that he issued proceedings in the Federal Magistrates Court as a reason for staying the orders made by Mansfield J on 23 July 2009. I have allowed him to refer to the affidavit in SAD 138 of 2008, in order to finally deal with all of the interlocutory matters surrounding the two decisions of Mansfield J and the decision of the Full Court, and I allowed him to make reference to the proceeding which he has issued in the Federal Magistrates Court. However in my opinion, the issue of that proceeding does not support the application for a stay, because the proceeding in the Federal Magistrates Court purports to have the Court review the decisions of the Deputy Commissioner of Taxation and the Commissioner of Police which were the subject matter of the proceeding before Mansfield J and disposed of by him on 15 January 2009. In my opinion, it would not be appropriate to stay the orders of 23 July 2009 made by Mansfield J, on the basis that the applicant wished to re-agitate in the Federal Magistrates Court the same issues which his Honour had disposed of on 15 January 2009. 8 Mr Nicholls said that the evidence which would support the application for a review of the decisions, which had been impugned in the proceedings before Mansfield J was different than that which had been adduced before his Honour in the proceeding disposed of on 15 January 2009. He said he had obtained information during the currency of those proceedings and the proceedings disposed of by Mansfield J on 23 July 2009 and under the Freedom of Information Act, which would allow him to challenge those decisions on other evidential bases. In my opinion, that also is not a good reason to stay the orders of 23 July 2009 made by Mansfield J. The time for Mr Nicholls to adduce evidence in relation to the decisions in which he complained was in the proceeding brought before Mansfield J which was disposed of in his orders of 15 January 2009. It is not appropriate for the applicant to split his case or split his applications and rely upon different evidence for a review of the same decisions: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. 9 In my opinion, the fact of the issue of the proceedings in the Federal Magistrates Court does not support the application for a stay. The application then for a stay of Mansfield J's orders of 23 July 2009 is refused. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.