Howard v Commissioner of Taxation [2011] FCA 137

FEDERAL COURT OF AUSTRALIA

Howard v Commissioner of Taxation [2011] FCA 137 Citation: Howard v Commissioner of Taxation [2011] FCA 137

Parties: STEPHEN JAMES HOWARD v COMMISSIONER OF TAXATION

File numbers: VID 80 of 2010 VID 28 of 2011

Judge: JESSUP J

Date of judgment: 23 February 2011

Date of hearing: 21 February 2011

Place: Melbourne

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 8

Counsel for the Applicant: Mr H Carmichael

Solicitor for the Applicant: Oakley Thompson & Co

Counsel for the Respondent: Mr P Hanks QC with Mr P Sest

Solicitor for the Respondent: Maddocks

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 80 of 2010

BETWEEN: STEPHEN JAMES HOWARD

Applicant

AND: COMMISSIONER OF TAXATION

Respondent

JUDGE: JESSUP J DATE OF ORDER: 23 FEBRUARY 2011 WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. This proceeding be heard together with proceeding VID 28/2011. 2. By 4:00 pm on 14 February 2011, the respondent file and serve any additional documents pursuant to Order 52B of the Federal Court Rules. 3. By 4:00 pm on 18 February 2011, the applicant file and serve an Amended Appeal Statement. 4. By 4:00 pm on 25 February 2011 the respondent file and serve an Amended Appeal Statement. 5. By 4:00 pm on 28 February 2011, the applicant, in consultation with the respondent, compile and serve an indexed and paginated Court Book, such Court Book to be consolidated with that prepared for proceeding VID 28/2011 and to contain each party's Appeal Statement, the affidavits, including exhibits, on which each party intends to rely at trial, any documents which each party intends to tender, and the documents filed under Order 52B of the Federal Court Rules. 6. By 4:00 pm on 9 March 2011, each party file and serve a list of objections to the evidence of the other party, referring to the relevant page (and, where relevant, paragraph) of the Court Book, together with a short summary stating the grounds of every such objection. 7. By 4:00 pm on 15 March 2011, the parties file and serve any response to any list of objections received, together with a short summary stating the grounds of response. 8. By 4:00 pm on 15 March 2011, the parties file and serve their outlines of submissions. 9. The proceeding be listed for trial at 10:15 am on 24 March 2011. 10. The trial of the proceeding be by affidavit with the right of cross-examination in accordance with the Federal Court Rules. 11. Pursuant to section 7(1)(a) of the Foreign Evidence Act 1994 (Cth), the oral evidence of the following witnesses be taken by way of examination before the trial Judge at a venue approved by the court in London in the United Kingdom, commencing at 10:15 am on 28 March 2011: (a) Kevin Patrick Donovan care of Harbottle & Lewis LLP, solicitors of 14 Hanover Square, London; (b) Christopher Baynes of Greywalls, 52 High Street, Findon Village, West Sussex, United Kingdom; (c) Simon James Hopkins of 44 Clerkenwell Close, London, United Kingdom; (d) John Richard Shenton of Grant Thornton Limited, Kensington Chambers, 46/59 Kensington Place, St Helier, Jersey, Channel Islands; (e) Stuart Hornby of RBC Trustees (CI) Limited, La Mottle Chambers, St Helier, Jersey, Channel Islands; and (f) David Ross Mackie of 69 Grand Rue, Mazenay, St Sernin du Plain, 7150, France. 12. Subject to any direction by the examiner, the examination proceed at the appointed venue from day to day until concluded, but not beyond 4:15 pm on 31 March 2011. 13. The Evidence Act 1995 (Cth) apply to the examination. 14. Pursuant to O 1 r 8 of the Federal Court Rules, for the purposes of the said examination, the requirements of rr 1(2), 3, 4, 6, 7, 8, 9 and 10 of O 24 of those Rules be dispensed with. 15. The applicant make the necessary arrangements, subject to the approval of the court, for: (a) a venue for the examination; (b) the taking of a transcript of the proceedings of the examination. 16. Subject to correction, and to all just exceptions, the transcript of the proceedings of the examination be received into evidence as an exhibit in the proceeding. 17. Subject to any agreement between the parties, the applicant be responsible, in the first instance, for the costs of the venue and the transcript, such costs to the applicant's costs in the cause. 18. Before the commencement of the said examination, the parties pay, in equal shares, the costs expected to be incurred by the court of and incidental to the said examination, such expected costs to be paid to the District Registrar by each party within seven days of receipt of her written estimate of that party's share. 19. After the conclusion of the said examination, the District Registrar account to the parties for the costs actually incurred by the court of and incidental to the said examination, and – (a) if the sums paid pursuant the previous order exceed those costs, the excess be repaid to the parties in their respective shares; (b) if the sums paid pursuant to the previous order fall short of those costs, the parties pay, in their respective shares, the amount of the shortfall to the District Registrar; such repayment, or payment, as the case requires to be made within 28 days after the district Registrar's account.. 20. Subject to any order by the court, the balance paid by each party pursuant to the two preceding orders be that party's costs in the cause. 21. The costs of 4 February 2011 be each party's costs in the cause. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.