Commissioner of Taxation v White (No 2) [2024] FCA 1291

Federal Court of Australia Commissioner of Taxation v White (No 2) [2024] FCA 1291 File number: NSD 884 of 2023

Judgment of: KENNETT J

Date of judgment: 8 November 2024

PRACTICE AND PROCEDURE – application to strike out part of statement of claim – where submissions prepared in tabular form – whether pleading impermissibly cast in the alternative – whether parts of pleading embarrassing Catchwords: PRACTICE AND PROCEDURE – application to amend statement of claim PRACTICE AND PROCEDURE – where applicant claims civil penalties – application for relief from pleading rules due to privilege against exposure to a penalty PRIVILEGE – joint privilege and joint clients –application for access to documents produced in response to subpoena – subpoena issued to partnership –where applicant a former partner of the partnership – where applicant claims legal professional privilege over documents produced by partnership – where partnership does not claim privilege – whether former partner can claim privilege to resist application for access to documents

Federal Court of Australia Act 1976 (Cth) ss 37AF, 37N Income Tax Assessment Act 1936 (Cth) ss 100A, 318 Legislation: Income Tax Assessment Act 1997 (Cth) s 995-1 Taxation Administration Act 1953 (Cth) Sch 1 ss 284-15, 290-50, 290-55, 290-60, 290-65, 353-10 Federal Court Rules 2011 (Cth) r 16.21

Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (trading as Captain Cook College) (No 2) [2020] FCA 863 Australian Securities and Investments Commission v Maxwell [2006] NSWSC 1052; 59 ACSR 373 Australian Securities and Investments Commission v Noumi Ltd [2024] FCA 349 AWB Ltd v Cole [2006] FCA 571; 152 FCR 382 AWB v Cole (No 5) [2006] FCA 1234; 155 FCR 30 Banque Commerciale SA (en liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd [2010] ACTSC 20; 4 ACTLR 114 Cauvin v Philip Morris Ltd [2003] NSWSC 631 Commercial Union Assurance Co plc v Mander [1996] 2 Lloyds Rep 640 Commissioner of Taxation v White [2023] FCA 1176 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298 Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; 201 CLR 49 Cases cited: Equititrust Ltd (In Liq) (Receiver Appointed) (Receivers and Managers Appointed) v Equititrust Ltd (In Liq) (Receiver Appointed) (Receivers and Managers Appointed); In the Matter of Equititrust Ltd (In Liq) (Receiver Appointed) (Receivers and Managers Appointed) (No 3) [2016] FCA 738 Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601 Federal Commissioner of Taxation v Ludekens [2013] FCAFC 100; 214 FCR 149 Forrest v Australian Securities and Investments Commission [2012] HCA 39; 247 CLR 486 Gunns Ltd v Marr [2005] VSC 251 Hancock v Reinhart (Freehills Subpoena) [2017] NSWSC 530 Mann v Carnell [1999] HCA 66; 201 CLR 1 Mercantile Mutual Insurance (NSW Workers Compensation) Ltd v Murray [2004] NSWCA 151 McSteen v Architects Registration Board of Victoria [2018] VSCA 96 New South Wales v Betfair Pty Ltd [2009] FCAFC 160; 180 FCR 543 Rich v Harrington [2007] FCA 1987 Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 Wheelahan v City of Casey [2013] VSC 316 White v Commissioner of Taxation [2024] FCA 185 Roderick I'Anson Banks, Lindley & Banks on Partnership (21st ed, Sweet & Maxwell, 2022)