In the original dispute, the appellant claimed to have invented a therapeutic product and set up several companies, of which she was the majority shareholder. Venika Biotech Pty Ltd was to be associated with the research, development and marketing of the product in relation to cancer. The appellant says that she obtained independent advice that her companies were eligible for a research and development tax offset and based on that advice she caused Venika Biotech to file an application with the ATO for a research and development tax offset in respect of the costs of development of the product.
Subsequently charged with thirty offences relating to an investigation conducted by the Australian Taxation Office, the appellant filed an originating application in the Supreme Court against the respondents seeking a permanent stay of the ATO Charges or, alternatively, orders setting the proceedings aside. The appellant caused the issue of nine subpoenas requiring the attendance of witnesses at the hearing of the application but prior to the substantive hearing, the respondents sought and obtained orders from the primary judge setting aside each of those subpoenas on the basis the subpoenas disclosed no legitimate forensic purpose and bore the character of a fishing expedition. By these proceedings, the appellant sought to set aside those orders, claiming the primary judge’s attention was not drawn to a recent decision in the New South Wales Court of Appeal which reconsidered the line of previous authorities with respect to the relevant considerations for an exercise of discretion to set aside a subpoena.
Scott McLeod KC (leading P Kinchina) appeared for the respondents, instructed by the Australian Government Solicitor.
The judgment is published here.
