The Federal Court has largely set aside notices to produce documents served by the taxpayer on a Deputy Commissioner of Taxation.
On 25 September 2012, the solicitors for the taxpayer served a notice to produce documents on the solicitors for the Deputy Commissioner of Taxation. The notice sought various documents and communications. The Deputy Commissioner moved to set aside that notice to produce mainly on the ground that the notice constituted a substitute for discovery. The Federal Court noted that it was not in dispute that the use of a notice to produce for that kind of purpose is impermissible. The Court was of the view that the notice was a substitute for discovery and therefore set it aside. According to Perram J, each of the paragraphs in the notice to produce “begins with the words ‘all communications’ or ‘all material’ or ‘all documents’ and, viewed as a whole, it seems to me this notice is unusually broad” and was a substitute for discovery.
On 8 October 2012, the taxpayer issued another notice to produce to the Deputy Commissioner. The Court set aside paras 2, 4 and 5 of that notice, but varied para 3 so that it read: “All documents that were considered by the decision-maker and were relied on for the purpose of making the 20 September 2012 assessments.”
(DCT v Chemical Trustee Limited (No 7) [2012] FCA 1280, Federal Court, Perram J, 16 November 2012.)
[LTN 232, 29/11]