The Federal Court has granted the Commissioner’s application to use the affidavits of several persons that had been served on the Commissioner in other tax proceedings that were ultimately settled in the Hua Wang Bank Berhad litigation.
In finding that the circumstances were sufficiently “special” to grant the Commissioner’s application the Court took into account a range of matters including: the nature of the document; the circumstances under which it came into existence; whether it existed before the litigation was commenced; and the nature of the information it contained. In granting the Commissioner’s application the Court found that the affidavits were likely to have considerable relevance to the Hua Wang Bank proceedings – especially in relation to the issue of the credibility of witnesses and their testimony in relation to the key “central place of control and management” issue. The Court also took into account that the affidavits were produced voluntarily in the course of the other proceeding and that the issue of harm to reputation of the persons was not relevant in the circumstances.
(HuaWang Bank Berhad v FCT (No 8) [2013] FCA 1021, Federal Court, Perram J, 8 October 2013.)
[LTN 196, 10/10/13]