The Oak Hotel Cessnock Pty Ltd (in liq) v Deputy Commissioner of Taxation (No 2) [2021] NSWSC 261

Supreme Court New South Wales

Medium Neutral Citation: The Oak Hotel Cessnock Pty Ltd (in liq) v Deputy Commissioner of Taxation (No 2) [2021] NSWSC 261 Hearing dates: 18 March 2021 Decision date: 19 March 2021 Jurisdiction: Common Law Before: Adamson J Decision: (1) Set aside the notice to produce issued by the plaintiffs dated 23 February 2021. (2) Order the plaintiffs to pay the first defendant's costs of the notice of motion filed on 10 March 2021 on an indemnity basis. Catchwords: CIVIL PROCEDURE — Notices to produce — Application to set aside — Abuse of process COSTS — Party/Party — Indemnity costs Legislation Cited: Freedom of Information Act 1982 (Cth) Taxation Administration Act 1953 (Cth), sch 1, s 260-5 Uniform Civil Procedure Rules 2005 (NSW), rr 21.9, 21.10 Category: Procedural rulings Parties: The Oak Hotel Cessnock Pty Ltd (in liq) (ACN 150 948 619) (First plaintiff) Hunter Valley Dental Surgery Pty Ltd (ACN 089 023 696) (Second plaintiff) Dr John Harvey (Third plaintiff) Deputy Commissioner of Taxation (First defendant) Commonwealth of Australia (Second defendant) Representation: Counsel: J Harvey, in person (First, second and third plaintiffs) E Ball (First and second defendants)

Solicitors: Ashurst Australia (First and second defendants) File Number(s): 2019/274489

Judgment

Introduction 1. By notice of motion filed on 10 March 2021, the Deputy Commissioner of Taxation (the first defendant) sought an order to set aside the notice to produce issued by the plaintiffs dated 23 February 2021. The notice to produce sought production of the following documents: "1 All documents referred to in the letter from Satomi Sword of the Australian Taxation Office to John Harvey dated 19 February 2021, in an unredacted form (attached); 2 All documents on First and/or the Second Plaintiff's file held by the Australian Taxation Office included in the FOI request made by John Harvey dated 22 January 2021 (attached)." 1. In substance, the basis of the first defendant's application is that the notice to produce ought be set aside as an abuse of process and also because it does not comply with the rules as to the form of such notices. In order to assess the first of these submissions, it is necessary to set out in summary form the nature of the plaintiffs' claim and, where relevant, the procedural history.