Cooke v Commissioner of Taxation [2001] FCA 1654

FEDERAL COURT OF AUSTRALIA

Cooke v Commissioner of Taxation [2001] FCA 1654

PRACTICE AND PROCEDURE – proceedings set down for hearing for five days after affidavits in chief, an affidavit in defence of an expert kind, and affidavits in reply had been completed and filed – statements of issues and contentions had also been filed prior to setting down the proceedings for hearing – Respondent filed further lengthy affidavit evidence in defence of expert character seven days prior to allocated hearing date without first seeking leave of the Court or consent of the Applicants – Respondent offered adjournment at its expense – Applicants' preferred course to proceed on the hearing dates fixed – Applicants subjected to financial limitations in pursuing the proceedings – purpose of new affidavit to raise additional evidence in support of defence already open to it rather than to raise additional defence – application to disallow use of the affidavit filed by the Respondent out of time granted.

Income Tax Assessment Act 1936 (Cth) s 51(1), Part IVA Taxation Administration Act 1953 (Cth) s 14ZZO Cohen v McWilliam (1995) 38 NSWLR 476 distinguished The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 147 distinguished GRAHAM GEORGE COOKE v COMMISSIONER FOR TAXATION NG 167 of 1998 HUGH HUNTER JAMIESON v COMMISSIONER OF TAXATION NG 168 of 1998 GRAHAM GEORGE COOKE v COMMISSIONER FOR TAXATION NG 1106 of 1998 CONTI J 20 NOVEMBER 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 167 OF 1998

BETWEEN: GRAHAM GEORGE COOKE

APPLICANT

AND: COMMISSIONER OF TAXATION

RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 168 OF 1998

BETWEEN: HUGH HUNTER JAMIESON

APPLICANT

AND: COMMISSIONER OF TAXATION