Connell v Commissioner of Taxation

[1992] FCA 1090

JUDGMENT No. ........ ........ 1070 1.42 ,. ., o.,oGveu

IN THE F W R A L COURT OF AUSTRALIA 1

BE: REUTER v. COMMISSIONER OF TAXATION:

BETWEEN :  LAWRENCE ROBERT CONNELT!

Applicant

AND :  COMMISSIONER OF TAXATION

Respondent

CORAM: Burchett J.
PLACE: Perth

DATE : 2 December 1992

Well, I think the appropriate thing to do is to dismiss

this present application on the footing that it is premature

W'	to attempt to decide whether there will in fact be any real problem occasioned by the calling of Mr Connell to give evidence. We do not know at this stage precisely how his evidence, if he is to proceed to give it, will fit in with the exigencies of two other proceedings which apparently have already been fixed for dates involving a total overlap. It is apparent that those who have not changed the existing times for hearing have not as yet been persuaded that such an
overlap has insuperable problems.
In the circumstances, it seems to me that the normal course ought to be followed, by which I mean that those representing Mr Connell should approach the solicitors by whom the subpoena was issued to ascertain when his attendance will be required. I have been informed that it is expected his evidence in chief will take a period of approximately one hour; having regard to that, it may well be that his attendance under the subpoena will be quite brief. With the ordinary co-operation between the representatives of the
L	parties, it is likely that there will in fact be no great problem. If a problem does develop, it is a problem which courts are used to dealing with, and an appropriate application will be able to be made during the running of the cases to any one or more of the three persons acting as judge or magistrate in the various proceedings. Accordingly, the present application is dismissed. I will make no order as to costs.
L/	&R G E N W then applied for leave to file and serve a fresh
H I S HONOUR: Well, I am not going to give you leave to make application to set aside the subpoena. such an application. I thought I had made it clear in the
reasons I have just delivered. I think that is an inappropriate application. It seems to me that the appropriate application - if you run into real problems - is not to set aside the subpoena, but to ask the judge dealing with the matter to exercise a discretion as to when your client is called. It is a different thing.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Burchett.

(3-- - -

Associate : D & 'Lb-$-,

Date: 2 December 1992

Counsel for the Applicant:	Mr N.P. Gentilli of Messrs Jackson McDonald
Solicitors for the Applicant:	Messrs Jackson McDonald
Counsel for the Respondent:	Mr E.M Heenan Q.C. with Mr G.J. Windsor
Solicitor for the Respondent:	Australian Government Solicitor
Date of hearing:	2 December 1992