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Judgement On Vanda Russell Gould V Deputy Commissioner

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Question:

Discuss about the Judgement on Vanda Russell Gould v Deputy Commissioner.
 
 

Answer:

Introduction:

The case of Mr. Vanda Russell Gould and Deputy Commissioner of Taxation would be discussed in the report. The parties to the case were Deputy Commissioner of Taxation v Vanda Russell Gould and Vanda Russell Gould v Deputy Commissioner of Taxation. In the first case Deputy Commissioner of Taxation was applicant and Vanda Russell Gould was respondent. In the second case Vanda Russell Gould was cross- claimant and applicant and Deputy Commissioner of Taxation was respondent and cross- respondent (Mathews 2014).

In case of Deputy Commissioner of Taxation v Vanda Russell Gould, Australian Government Solicitor was appointed for Deputy Commissioner of Taxation and the counsel for Mr. Vandra Russell Gould included Mr. D McGovern, Dr J Jaques and Mr. R A Jedrzejczyk (Begbie 2015). In case of Vanda Russell Gould v Deputy Commissioner of Taxation, the solicitor for Mr Vanda Russel Gould was Mark J Ord. The counsel for the Deputy Commissioner of Taxation included Mr. J Hyde Page and Mr T Bafley (Judgments.fedcourt.gov.au 2017). 

The Deputy Commissioner of Taxation had initiated an action to recover taxes and challenged the assessment filed by Mr. Vanda Gould. The Commissioner had obtained a number of documents from Cayman Islands, a foreign tax authority and used it as a basis to file an action against Mr. Vanda Gould (Dourado 2013). Mr. Vanda Gould applied for seeking a standard discovery against the action of Deputy Commissioner of Taxation on 2nd November, 2015. The provisions of Taxation Administration Act, 1953 were breached in the given case.

 

Explanation of the Case and Sections Breached:

The application of Mr. Vandra Gould was subject to r20.13 of the Federal Court Rules 2011 (Cth) (Stellios 2014). The claim of Mr. Gould challenged that the tax assessment were valid and claimed that officers of the commissioner were guilty of failure to comply with s13 of the Public Service Act 1999 (Cth). The Deputy Commissioner of Taxation had obtained some documents from the Cayman Islands, a foreign tax authority and used them (Griffiths 2016). This constituted conscious maladministration on the part of the Commissioner of Taxation and improper usage of the documents (Kulkarni 2014).

In the cross- claim, three improprieties were claimed by the counsel appointed by Mr. Vanda Gould and sought standard discovery against the Commissioner (Legg 2013). The first of the three improprieties was the original request made by the Commissioner to the related authorities of the Cayman Islands for the purpose of obtaining the information. The counsel for Mr. Vanda claimed an inherent implausibility. The Australian Taxation Office used the documents obtained from Cayman Islands for the tax period which had not elapsed at the time the information was requested. The second impropriety was concerned with the disregard of a treaty entered into between the Australian Government and the authorities of the Cayman Islands. Counsel of Mr. Gould claimed that the disregard was by comparatively lower level employees of the Australian Taxation Office who were incompetent for the purpose. The third impropriety was related to what the Counsel of Gould claimed to be an act of criminal offence committed by Deputy Commissioner of Taxation. This propriety of members of Australian Taxation Office was a criminal act in the eyes of law of Cayman Islands as the officers had disclosed some confidential information of Mr. Gould (Clough and Roberts 2014).

Thus, the counsel of Mr. Gould pleaded for standard discovery in the Federal Court of Australia. The federal Court of Australia had proposed some reforms in relation to grant of discovery which was made applicable for providing judgment in the case. The Federal Court Rules 2011 (Cth) contains revised regimes which deal with the discovery and the associated cost to discovery. It has enhanced judicial control on discovery.

The new regimes require that a party applying for standard discovery must specify it clearly that a standard discovery is sought. They may otherwise state the proposed scope for the purpose of discovery. There are different rules for standard discovery and more extensive non- standard discovery.

The new rules of the Federal court of Australia have set out the rules for standard discovery in rule 20.14. The concerned party may seek discovery of documents that are related to the issues mentioned in the affidavits or in the pleadings. Such issues must be within the control of the party and the party must become aware of the issue on conducting a reasonable search. The documents are considered to be directly related if the documents are used as the basis of reliance by the parties, these documents support the case of opposition party and affect the case of the applying party.

Non- standard discovery can be sought by the parties only if direct relevant test and other relevant criteria of standard discovery cannot be applied. The order for discovery can be sought clearly elaborating the criteria that the parties want to apply.

The Deputy Commissioner of Taxation issued submissions against the contention filled by the Counsel of Mr. Gould, partially by alleging that it was absolutely unnecessary to provide discovery which was sought in the pleaded case. It also alleged that standard discovery sought in the given case was irrelevant and a case of fishing expedition (Debelva and Diepvens 2016).

 


Paragraph 17 of Counsel of Mr. Gold’s claim alleged that the request made by the Deputy Commissioner of Taxation on 23rd February, 2011 to the Cayman Islands Tax Information Authority (the Cayman Islands Authority) was not for a valid purpose as per ‘the information exchange agreement’ related to the Exchange of Information with respect to taxes between the Government of Australia and the Government of the Cayman Islands. This allegation was subject to the terms of the request made by the Commissioner and construction of the information exchange agreement (Judgments.fedcourt.gov.au 2017).

Paragraph 18 of the claim of Counsel of Mr. Gould alleged that the employees and officers of the Commissioner were aware that the information they sought from the Cayman Islands Authority would not be used for a valid purpose. However, the pleading made by the counsel of Mr. Gould did not indicate bad faith. It was not even pleading of being aware of doing a wrongful act. It provided only a part of the allegation and relied on the statement that was too general and which just stated that further particulars would be provided after the completion of discovery in the form of evidence. Thus, the pleadings, any particulars of the pleadings and the submissions made along the pleadings by the counsel of Mr. Gould in the cross- claim did not reflect any consciousness of wrongdoing in case they are relied upon. The terms of the pleadings made in the cross- claim failed to provide the state of the mind of employees and officers of Commissioner of Taxation. The judgement based on  16.43 in the case of Young Investments Group Pty Ltd v Mann (2012) 293 ALR 537 issued in September 2011,  had concluded that allegations must clearly and particularly state the condition of mind. No standard or particular discovery can be ordered if there is a case of inappropriate fishing expedition (Kobal and Ivanc 2013).

 The Act provides that there is a fine line of significant difference between being conscious of an act which turns out to be wrong when committed and committing an act with conscious mind which was known to be wrong in the first place. Thus, there must be specific and clear pleadings on each of these matters. As per the description provided about the consciousness of committing a wrongful act and consciousness of merely a fact which might be wrong indicates that the allegation of awareness can arise only if an express finding that was conducted for the purpose indicates that the request made was not for a valid purpose as per the terms of information exchange agreement. A judgment was also delivered on the similar matter by the Grand Court in the Cayman Islands in which one group of people had a mal intention of carrying particular information and transmitting them despite the knowledge of the fact (Azzi 2016).

Paragraph 19 of the claim alleged that the officers and employees of the Commissioner of Taxation were aware that the request made by them to the officers of the Cayman Islands Authority were not related to the tax periods enclosed by the agreement of information exchange.

Paragraph 32 claimed that the employees and Officers of the Commissioner of Taxation obtained the documents from Cayman Islands Authority and raised the assessments that were already amended (Judgments.fedcourt.gov.au 2017).

 

Decision of the Federal Court of Australia:

The application made by the counsel of Mr. Vanda Russell Gould was dismissed by the Federal Court of Australia on 1st December, 2015. Judge Pagone J passed the judgement in the favor of Deputy Commissioner of Taxation.

The Commissioner’s defense did not contest against the cross- claim made by the counsel of Mr. Gould. Neither the facts nor the dates of the information sought by the Commissioner of Taxation from the Cayman Islands Authority were under any sort of dispute.  The cross- claim made by the counsel of Mr. Gould did not plead bad faith in relation to the Commissioner of Taxation. However, the submissions that accompanied the application for standard discovery, in contrast to pleading, sought discovery on the ground of advertence or consciousness of wrong doing. If any order is issued for standard discovery, it does not necessarily result in the discovery of the documents, as was presupposed in the submissions of Mr. Gould.

Both, the Commissioner of Taxation and Mr. Gould agreed to the Practice Note CM5 of the Federal Court of Australia. The general practice of the court related to the discovery, as specified by the note, is facilitating quick, inexpensive and efficient resolution of the proceedings (Torgler 2016). Thus, in the given case, particular discovery seemed more appropriate than the standard discovery. Although the submissions made by Mr. Gould attempted to find specific matters, they did not provide any sufficient basis for gaining standard discovery. The standard discovery is not appropriate to focus with precision upon the issues on which the discovery is sought. In addition, the cross claim that contained an allegation regarding the consciousness of wrongdoing, also failed to provide sufficient particulars indicating any case that exists to justify that the discovery was not fishing expedition. The basis for this was the case of Trade Practices Commission v CC (NSW) Pty Ltd (1995) 58 FCR. The case had stated the meaning of fishing expedition. It required that the standard or particular recovery shall not be used as the basis for determining the existence of a case. The recovery only aims to compel the production of a document where is a clear evidence of existence of a case (Foleys.com.au 2017). There must be sufficient evidence to show that the party which is applying for the discovery has sufficient ground and a good case proof for the existence of a document and the recovery will further aid the document and the case. The facts presented in the pleading for a particular case must be capable of showing a clear distinction between fishing expedition and non- fishing expedition (Bannister 2014).

The particular discovery was not granted in the case. This was because particular discovery can be sought only in appropriate application and discipline as required by r 20.2. It cannot be granted if the application is made in the discipline appropriate for the standard discovery. An application for particular discovery made specifically as is required by the discipline would facilitate the identification of the documents and categories of the documents with more precision. It would also be possible to assess the pleadings and the rise of need for a particular document in the course of specific proceedings.

 

Conclusion:

In conclusion, it can be stated that the cross- claim made by Mr. Gould did not provide any sufficient ground on the basis of which standard discovery could be granted. The pleading was not made in the particular discipline. It failed to satisfy the criteria of ‘relevant information’ for seeking the standard discovery. The counsel of Mr. Gould did not provide any specific case that could justify that the action of the Deputy Commission of Taxation was not a fishing expedition. Considering the facts presented in the case, a particular discovery could have been granted, in case the same was applied by the counsel of Mr. Gould. However, since the pleading was for standard discovery and the conditions for the grant of standard discovery were not satisfied, the Federal Court of Australia dismissed the application of Mr. Vanda Russell Gould.

 

References:

Azzi, J., 2016. Practical injustice in the context of private tax rulings.UNSWLJ, 39, p.1096.

Bannister, J., Appleby, G., Olijnyk, A. and Howe, J., 2014. Government Accountability. Cambridge University Press.

Begbie, T., 2015. Role and significance of the solicitor on the record. Legal Briefing, (107), p.2.

Clough, M. and Roberts, J., 2014. Commissioner of taxation wins appeal upholding tax assessment issued to. Australian Resources and Energy Law Journal, 33(2), p.93.

Debelva, F. and Diepvens, N., 2016. Exchange of Information. An Analysis of the Scope of Article 26 OECD Model and Its Requirements: In Search for an Efficient but Balanced Procedure. Intertax, 44(4), pp.298-306.

Dourado, A.P., 2013. Exchange of information and validity of global standards in tax law: Abstractionism and expressionism or where the truth lies.

Foleys.com.au, 2017. Cases Update for Private Groups [online] Available at: <https://www.foleys.com.au/resources/The%20Tax%20Institute_cases%20update%20paper_12.9.2016.pdf> [Accessed 19 Jan. 2017].

Griffiths, J.J., 2016. Recognition of Foreign Administrative Acts in Australia. InRecognition of Foreign Administrative Acts (pp. 51-89). Springer International Publishing.

judgments.fedcourt.gov.au, 2017. Deputy Commissioner of Taxation v Gould [2015] FCA 1345. [online] Judgments.fedcourt.gov.au. Available at: <https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2015/2015fca1345> [Accessed 19 Jan. 2017].

Kobal, A. and Ivanc, T., 2013. The Quality of Taxation with an Emphasis on Topical Issues Regarding Tax Declaratory Procedure. International Journal of Academic Research, 5(6).

Kulkarni, N., 2014. Validity of assessments in Pt IVC proceedings: Reconciling Gashi and McAndrew. Tax Specialist, 17(5), p.196.

Legg, M., 2013. Know your general from your standard discovery:[Litigation lawyers need to be clear on the type of discovery being ordered under the new Federal Court requirements, especially if it is different from standard discovery.]. Law Society Journal: the official journal of the Law Society of New South Wales, 51(1), p.36.

Mathews, M., 2014. International exchange of information: An Australian perspective. Tax Specialist, 17(3), p.131.

Stellios, J., 2014. The centralisation of judicial power within the Australian federal system. Federal Law Review (FLR), 42(2), pp.14-45.

Torgler, B., 2016. Tax Compliance and Data: What Is Available and What Is Needed. Australian Economic Review, 49(3), pp.352-364.

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