FEDERAL COURT OF AUSTRALIA Hua Wang Bank Berhad v Commissioner of Taxation (No 5) [2013] FCA 793 Citation: Hua Wang Bank Berhad v Commissioner of Taxation (No 5) [2013] FCA 793 Parties: HUA WANG BANK BERHAD v COMMISSIONER OF TAXATION BYWATER INVESTMENTS LIMITED v COMMISSIONER OF TAXATION CHEMICAL TRUSTEE LIMITED v COMMISSIONER OF TAXATION SOUTHGATE INVESTMENT FUNDS LIMITED v COMMISSIONER OF TAXATION DERRIN BROTHERS PROPERTIES LIMITED v COMMISSIONER OF TAXATION File numbers: NSD 653 of 2011, NSD 652 of 2011, NSD 654 of 2011, NSD 655 of 2011, NSD 656 of 2011 Judge: PERRAM J Date of judgment: 8 August 2013 Catchwords: EVIDENCE – Application for discrete evidentiary hearing – Whether balance of convenience favours discrete hearing EVIDENCE – Application for determination of admissibility of documents by a judge other than the docket Judge – Whether appropriate in the circumstances Legislation: Evidence Act 1995 (Cth) ss 136, 138 Date of hearing: 8 August 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 8 Counsel for the Applicant: Ms R L Seiden, Mr J Hyde Page Solicitor for the Applicant: Henry Davis York Counsel for the Respondent: Mr D J Fagan SC Solicitor for the Respondent: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 652 of 2011 BETWEEN: BYWATER INVESTMENTS LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: PERRAM J DATE OF ORDER: 8 AUGUST 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant's application to have the question of the admissibility, as evidence, of documents obtained from the Cayman Islands determined by a judge other than the docket judge be dismissed. 2. The applicant's application that the documents obtained from the Cayman Islands be tendered prior to the trial commencing 16 September 2013 be dismissed. 3. The applicant's application for Mr Briggs to give evidence at a discrete evidentiary hearing be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 653 of 2011 BETWEEN: HUA WANG BANK BERHAD Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: PERRAM J DATE OF ORDER: 8 AUGUST 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant's application to have the question of the admissibility, as evidence, of documents obtained from the Cayman Islands determined by a judge other than the docket judge be dismissed. 2. The applicant's application that the documents obtained from the Cayman Islands be tendered prior to the trial commencing 16 September 2013 be dismissed. 3. The applicant's application for Mr Briggs to give evidence at a discrete evidentiary hearing be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 654 of 2011 BETWEEN: CHEMICAL TRUSTEE LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: PERRAM J DATE OF ORDER: 8 AUGUST 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant's application to have the question of the admissibility, as evidence, of documents obtained from the Cayman Islands determined by a judge other than the docket judge be dismissed. 2. The applicant's application that the documents obtained from the Cayman Islands be tendered prior to the trial commencing 16 September 2013 be dismissed. 3. The applicant's application for Mr Briggs to give evidence at a discrete evidentiary hearing be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 655 of 2011 BETWEEN: SOUTHGATE INVESTMENT FUNDS LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: PERRAM J DATE OF ORDER: 8 AUGUST 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant's application to have the question of the admissibility, as evidence, of documents obtained from the Cayman Islands determined by a judge other than the docket judge be dismissed. 2. The applicant's application that the documents obtained from the Cayman Islands be tendered prior to the trial commencing 16 September 2013 be dismissed. 3. The applicant's application for Mr Briggs to give evidence at a discrete evidentiary hearing be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 656 of 2011 BETWEEN: DERRIN BROTHERS PROPERTIES LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: PERRAM J DATE OF ORDER: 8 AUGUST 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant's application to have the question of the admissibility, as evidence, of documents obtained from the Cayman Islands determined by a judge other than the docket judge be dismissed. 2. The applicant's application that the documents obtained from the Cayman Islands be tendered prior to the trial commencing 16 September 2013 be dismissed. 3. The applicant's application for Mr Briggs to give evidence at a discrete evidentiary hearing be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 653 of 2011 BETWEEN: HUA WANG BANK BERHAD Applicant AND: COMMISSIONER OF TAXATION Respondent IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 652 of 2011 BETWEEN: BYWATER INVESTMENTS LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 654 of 2011 BETWEEN: CHEMICAL TRUSTEE LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 655 of 2011 BETWEEN: SOUTHGATE INVESTMENT FUNDS LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 656 of 2011 BETWEEN: DERRIN BROTHERS PROPERTIES LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: PERRAM J DATE: 8 AUGUST 2013 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application to permit the evidence of Mr Graeme Briggs to be taken at a discrete evidentiary hearing in one of two periods, 12 to 17 August 2013 or after 25 November 2013, or at some other date selected by the Court. Mr Briggs is a resident of Singapore and is not amenable to subpoena. 2 I have previously refused an application that Mr Briggs' evidence be taken by video link on the basis that he is a significant witness and that the materials which would be necessary to facilitate his cross-examination could not be conveniently conducted by means of video link, and also for the various reasons relating to the difficulties with cross-examinations on credit being performed in that way. 3 At the time that that application was dealt with, the evidence of Mr Briggs was, perhaps, not as complete as it is now in relation to his unavailability. A fresh affidavit sworn on 6 August 2013 has now been put before me which sets out in some detail the fact of his unavailability. 4 The dates proposed of 12 to 17 August and after 25 November are not convenient to the Court and are, therefore, not feasible. Although it would be possible, perhaps, to take some evidence in late February or early March next year this case will have been reserved several months by then and I do not think it appropriate to hold up delivery of the judgment just for the purposes of Mr Briggs' convenience. 5 Whilst I accept that Mr Briggs is an important witness for the taxpayers, I do not think in the circumstances that there is anything that can be done in relation to his calling, and in those circumstances I refuse the application. 6 There is an application by the taxpayers that I refer to another judge a question as to whether certain documents originating from the Cayman Islands should be admitted into evidence. 7 There will be a debate at some stage as to whether that evidence should be excluded pursuant to s 138 of the Evidence Act 1995 (Cth) ('the Act'). That contention will be based upon the proposition that the evidence in various ways has been unlawfully obtained. It is not suggested that, as a matter of law, I would be disqualified from dealing with the matter; rather, the suggestion is that I might find it difficult to put from my mind the documents if I were to see them. I do not think that that is a substantial risk. 8 Sections 136 and 138 of the Act contemplate that judicial officers will often be placed in the situation of seeing potentially prejudicial material and it would be unworkable, I think, if trial judges were required to refer to other judges questions of admissibility of that kind each time they arose. I dismiss the application. I indicated during the hearing that I was not disposed to conduct this exercise before the trial commenced. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 14 August 2013