Canadian Pacific Tobacco Co Ltd v Stapleton [1952] HCA 32

High Court of Australia Dixon C.J. McTiernan, Williams and Kitto JJ. Canadian Pacific Tobacco Co Ltd v Stapleton [1952] HCA 32

ORDER Appeal dismissed.

The following judgments were delivered:—

McTiernan J.

In my opinion this appeal should be dismissed.

The principal question is the construction of s. 16 of the Income Tax and Social Services Contribution Act 1936-1952. I agree with the construction which the Chief Justice placed upon the section. That is expressed in the judgment which his Honour delivered at the hearing of the motion, after the argument upon the objection, founded upon s. 16, to the admission of Mr. Tobin's affidavit. He was an "officer" within the meaning of s. 16 of the Act. Having regard to the proceedings out of which the motion arose, the exception in sub-s. (2) of s. 16 applied to the affidavit, because the furnishing of the information which it contained for use as evidence in the motion, was connected with the office in which Mr. Tobin was employed by the Commonwealth. The furnishing of this information for use as evidence in the motion was done in performance of Mr. Tobin's duty as an officer. The question then arises whether the admission of the affidavit was prohibited by sub-s. (3). Mr. Tobin was not required to give the evidence contained in the affidavit. There is nothing in sub-s. (3) which made the affidavit inadmissible. The sub-section excludes the obligation of an officer to produce certain documents and give certain evidence, except in the circumstances which it mentions. This is as far, as Rich J. said in delivering the judgment of the Court in O'Flaherty v. McBride [1] as the sub-section goes. If an officer is not "required" to give evidence there is nothing in the sub-section which excludes his evidence. I am of opinion that the affidavit was rightly admitted in evidence.