Southwestern Indemnities Ltd v Bank of New South Wales [1973] HCA 52

High Court of Australia Barwick C.J. Southwestern Indemnities Ltd v Bank of New South Wales [1973] HCA 52

Cur. adv. vult.

Barwick C.J.delivered the following written judgment:—

Nov. 9 Barwick C.J.

Southwestern Indemnities Ltd. (the applicant) was incorporated in Norfolk Island under the provisions of the Companies Act, 1899 NSW made applicable to Norfolk Island by the Companies Ordinance, 1926-1964, of that Territory. According to an affidavit filed by it in the present proceedings, all its shareholders are natural persons resident on Norfolk Island. The applicant is said not to be a trading company and not at any time to have derived any income except in the financial year 1968-1969. In that year, according to an affidavit filed on its behalf in these proceedings, it received a sub-underwriting commission paid to it by a company incorporated and carrying on business on Norfolk Island pursuant to a contract entered into on Norfolk Island between the applicant and that company.

On 2nd October this year an investigation officer of the Department of Taxation attended at the Norfolk Island premises of the Bank of New South Wales, the applicant's bankers, and requested access to the bank ledger cards of a number of companies whose names appeared on a list produced by the officer to the manager of the Norfolk Island branch of the bank. The applicant's name appeared on that list. The officer, who was duly authorised in that behalf under the provisions of the Income Tax Assessment Act 1936-1972 (the Act), in answer to the manager's inquiry, said that his request for access to the ledger cards was "in terms of s. 263 of the Income Tax Assessment Act ", i.e. the Act.

On 2nd October 1973 the applicant by writ of summons commenced an action against the Bank of New South Wales and the Commissioner of Taxation endorsing a claim for declarations and orders as follows: