Frangieh v Deputy Commissioner of Taxation & Anor [2018] NSWCA 337

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Frangieh v Deputy Commissioner of Taxation & Anor [2018] NSWCA 337 Hearing dates: 1 and 2 February 2018 Decision date: 20 December 2018 Before: Beazley P at [1]; Meagher JA at [2]; White JA at [3] Decision: Appeal dismissed with costs. Catchwords: TORT – Misfeasance in public office – Whether employee responsible for the income taxation audit of the appellant unlawfully exercised power under s 167 of the Income Tax Assessment Act 1936 (Cth) by assessing a higher taxable income – Whether malice, bad faith or conscious maladministration were demonstrated by the employee – Whether Jones v Dunkel inference can be drawn from respondent's failing to call the employee – Whether Deputy Commissioner of Taxation or Commissioner of Taxation was vicariously liable for alleged tort – Appeal dismissed Legislation Cited: Income Tax Assessment Act 1936 (Cth), ss 167, 170, 175, 177, 264 Public Service Act 1999 (Cth), s 20 Taxation Administration Act 1953 (Cth), Pt IVC, ss 7, 8, Sch 1 Taxation Administration Act 1997 (Vic), s 73 Cases Cited: Blackpool Corporation v Locker [1948] 1 KB 349 Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 Denver Chemical Manufacturing Co v Commissioner of Taxation (NSW) (1949) 79 CLR 296 Deputy Commissioner of Taxation v Joseph Frangieh [2017] NSWSC 252 Favaro v Federal Commissioner of Taxation (1997) 36 ATR 55 Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146; [2008] HCA 32 Jones v Dunkel (1959) 101 CLR 298 Madden v Madden (1996) 65 FCR 354 Marijancevic v Mann [2008] FCAFC 161; (2008) 73 ATR 709 New South Wales Land and Housing Corporation v Navazi [2013] NSWCA 431 Northern Territory of Australia v Mengel (1995) 185 CLR 307 O'Reilly v State Bank of Victoria Commissioners (1982) 153 CLR 1 R v Deputy Commissioner of Taxation (WA); Ex Parte Briggs (No 2) (1987) 14 FCR 249 Re Reference Under Section 11 of Ombudsman Act 1976 (1979) 2 ALD 86 Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 Trautwein v Federal Commissioner of Taxation (1936) 56 CLR 63 Category: Principal judgment Parties: Joseph Frangieh (Appellant) Deputy Commissioner of Taxation (1st Respondent) Commissioner of Taxation (2nd Respondent) Representation: Counsel: J Hyde Page (Appellant) RJ Weber SC with SAC Patterson (Respondents)