Deputy Commissioner of Taxation v Shi (No 3) [2019] FCA 945

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v Shi (No 3) [2019] FCA 945 File number: NSD 2193 of 2018

Judge: STEWARD J

Date of judgment: 21 June 2019

Catchwords: EVIDENCE – privilege against self-incrimination – where disclosure order in connection with a freezing order required respondent to disclose information concerning his worldwide assets – where information disclosed in a privilege affidavit may tend to prove the person has committed a criminal offence against or arising under an Australian law – whether the party seeking access to a privilege affidavit bears the onus of proof with respect to s 128A(6) of the Evidence Act 1995 (Cth) – where no evidence led as to the content of foreign law – whether information disclosed does not tend to prove the commission of a foreign offence – where the Commissioner of Taxation has the power to compulsorily obtain information contained in the privilege affidavit pursuant to s 353-10 of Sch 1 to the Taxation Administration Act 1953 (Cth) – whether the interests of justice require the information to be disclosed

Legislation: Criminal Code (Cth) ss 11.5, 134.2, 135.4, 400.3 Evidence Act 1995 (Cth) ss 128, 128A Income Tax Assessment Act 1936 (Cth) s 264 Income Tax Assessment Act 1997 (Cth) Migration Act 1958 (Cth) Taxation Administration Act 1953 (Cth) ss 8C, 8D, 14ZZ, 353-10 Evidence Act 1995 (NSW) s 128

Cases cited: Federal Commissioner of Taxation v Warner (2015) 244 FCR 479 Cureton v Blackshaw Services Pty Ltd [2002] NSWCA 187 Damberg v Damberg (2001) 52 NSWLR 492 Denlay v Federal Commissioner of Taxation (2011) 193 FCR 412 Deputy Commissioner of Taxation v De Vonk (1995) 61 FCR 564 Deputy Commissioner of Taxation v Rennie Produce (Aust) Pty Ltd (in liq) (2018) 260 FCR 272 Deputy Commissioner of Taxation v Shi [2018] FCA 1915 Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd (No 3) [2019] FCA 285 Gedeon v The Queen [2013] NSWCCA 257; (2013) 280 FLR 275 Harman v Secretary of State for Home Department [1983] 1 AC 280 Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 Nelson v Federal Commissioner of Taxation [2017] FCA 819; (2017) 106 ATR 109 PCH Offshore Pty Ltd v Dunn (No 2) [2010] FCA 897; (2010) 273 ALR 167 R v Independent Broad-Based Anti-Corruption Commissioner (2016) 256 CLR 459 Severstal Export GmbH v Bhushan Steel Ltd (2013) 84 NSWLR 141 Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53; (2018) 93 ALR 1 Watson v Commissioner of Taxation (1999) 96 FCR 48 X7 v Australian Crime Commission (2013) 248 CLR 92