Donoghue v Commissioner of Taxation [2015] FCA 235

FEDERAL COURT OF AUSTRALIA

Donoghue v Commissioner of Taxation [2015] FCA 235 Citation: Donoghue v Commissioner of Taxation [2015] FCA 235

Parties: GARRY JOHN DONOGHUE v COMMISSIONER OF TAXATION GARRY JOHN DONOGHUE V COMMISSIONER OF TAXATION

File numbers: QUD 353 of 2012 QUD 360 of 2013

Judge: LOGAN J

Date of judgment: 17 March 2015

Corrigendum: 2 April 2015

Catchwords: INCOME TAX – notices of assessment issued to applicant pursuant to audit conducted by respondent – application under s 39B of the Judiciary Act 1903 (Cth) for orders declaring assessments invalid and quashing them – injunction – source of information – where audit performed and assessments made with the benefit of material provided by third party individual without applicant's permission – whether third party material subject to legal professional privilege – state of knowledge of respondent – whether there was conscious misuse of privileged material Held: third party worked to or for law firm with which the applicant had a retainer – alternatively third party acted as applicant's agent for the purposes of applicant's dealing with law firm – communications and documents made for dominant purpose of obtaining legal advice or for use in litigation and were therefore subject to legal professional privilege – respondent held apprehension that this was the case – material assisted respondent's train of inquiry and in process of making assessments – no right given by s 166 or s 263 of the Income Tax Assessment Act 1936 (Cth) to Commissioner to use material which is subject to legal professional privilege – element of recklessness in process of assessment sufficient to amount to conscious maladministration as described in Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 – assessment quashed – respondent restrained from using third party material