FEDERAL COURT OF AUSTRALIA Amway of Australia v Commissioner of Taxation [2003] FCA 409 AMWAY OF AUSTRALIA v COMMISSIONER OF TAXATION N 288 OF 2001, N 297 OF 2001, N 298 OF 2001, N 299 0F 2001, N 300 OF 2001, N 301 OF 2001, N 302 OF 2001, N 303 OF 2001 GYLES J SYDNEY 16 APRIL 2003 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 288 OF 2001 N 297 OF 2001 N 298 OF 2001 N 299 OF 2001 N 300 OF 2001 N 301 OF 2001 N 302 OF 2001 N 303 OF 2001 BETWEEN: AMWAY OF AUSTRALIA APPLICANT AND: COMMISSIONER OF TAXATION RESPONDENT JUDGE: GYLES J DATE: 16 APRIL 2003 PLACE: SYDNEY REASONS FOR RULING 1 On the first day of the hearing of the case, namely 24 March 2003, I rejected par 27 of the affidavit of Bruce Shankland of 26 February – indicating (without granting any leave) that the applicant may wish to seek to lead evidence in admissible form on the topic dealt with in that paragraph. 2 Later in the week an affidavit of Mr Christopher Edward Prouting of 26 March 2003 was produced. The respondent took objection to the reading of the affidavit, and it seemed to me that that was a topic best left for separate consideration. Further argument has now ensued. The objection on behalf of the Commissioner is that the applicant, upon being apprised of the objection which was taken, nonetheless proceeded to press the relevant part of the affidavit without conceding its inadmissibility and, having taken that course, should be bound by it. This is said to be particularly so in circumstances where witnesses have already been cross-examined on the events which this affidavit touches upon. It may be necessary to recall those witnesses because they were cross-examined in a setting where this evidence was not before the Court. 3 Furthermore, it is put that the Commissioner will be bound to carry out further investigations as to both the documents which are now produced, and other documents which might be relevant which have not been produced. All of this will give a burden of work which, of course, translates into costs. 4 If the objection had been notified in due time before the hearing so as to enable it to be cured, there would be a great deal to be said for the argument for the Commissioner. I need no persuasion that litigants making tactical decisions of a forensic nature, generally speaking, should be bound by them. I also do not need any persuasion about the benefits of the finality of litigation. On the other hand, the objection here was notified very late. In practical terms, it would have been very difficult to produce material to cure it prior to 26 March, which is the date of this affidavit. Under all the circumstances, it seems to me that the interests of justice require that admissible evidence be received. There is no effective delay as the matter is to be adjourned of necessity for other reasons and will not be resumed for many weeks. 5 On the question of costs occasioned by this application, I am inclined to make an order that the costs thrown away by the late production of the material be paid by the applicant, leaving it to the taxing officer to sort out this difficult problem. An alternative, which I will consider, is for me to fix an arbitrary figure at the end of the case when I know what has happened. As I do not propose to make any order as to immediate payment of costs, I will make a final order as to costs of this application at the conclusion of the case. I formally reserve the costs of today. I will deal with them as part of the overall tidy-up on this issue. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 6 May 2003 Counsel for the Applicant: JW Durack SC, SJ McMillan Solicitor for the Applicant: KPMG Legal Counsel for the Respondent: DB McGovern SC, KM Connor Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 16 April 2003 Date of Judgment: 16 April 2003