Connell v Commissioner of Taxation Summary

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

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

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.

&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

In the case of Connell v Commissioner of Taxation, the applicant, Lawrence Robert Connell, sought to have a subpoena set aside due to a potential conflict in his availability to give evidence in two separate proceedings. The respondent, the Commissioner of Taxation, opposed the application. The matter was heard in the Federal Court of Australia by Burchett J.

The legal issue before the court was whether the subpoena should be set aside due to a potential scheduling conflict. The court had to determine whether it was appropriate to address the issue at the preliminary stage of the proceedings or if it should wait until the conflict actually arose.

The court held that it was premature to decide whether there would be any real problem with the scheduling conflict. The court reasoned that the appropriate course of action was for the applicant's representatives to contact the solicitors who issued the subpoena to determine the exact requirements for Connell's attendance. Given that Connell's evidence was expected to take about an hour, it was likely that the attendance under the subpoena would be brief. The court concluded that any scheduling issues could be resolved through co-operation between the parties and, if necessary, addressed during the proceedings before the relevant judge or magistrate. Therefore, the application to set aside the subpoena was dismissed.

The court made no order as to costs.

Connell v Commissioner of Taxation

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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