Denlay v Commissioner of Taxation (No 2)

In the Federal Court of Australia, the case of Denlay v Commissioner of Taxation (No 2) involved the admissibility of certain documents that were central to the tax dispute. The central issue was whether these documents, obtained by an employee of a financial institution without the institution's permission, could be admitted into evidence under the provisions of the Evidence Act 1995 (Cth). The primary legal issues before the court were whether these documents qualified as business records under section 69(2) of the Act and whether the manner in which they were obtained rendered them inadmissible.

The court first addressed the hearsay rule exception for business records, determining that the documents in question met the requirements set out in section 69(2) of the Evidence Act 1995 (Cth). The court found that the employee who obtained the documents had knowledge of the record-keeping system, and the documents contained significant details concerning the applicants' activities and identity. Given these factors, the court concluded that the documents were admissible under section 69 of the Act. The court also considered whether the documents were improperly or illegally obtained. The court found that although the manner in which the documents were obtained was contrary to Liechtenstein law, it did not breach Australian law. The duty of confidence was not a relevant factor in this case, and since the Commissioner was not a party to the manner in which the documents were obtained, they were deemed not to be illegally obtained by the Commissioner.

The Federal Court overruled the objection to the receipt of evidence from Mr Kieber, including the exhibits to his affidavit and related translation evidence, and the receipt of evidence from Assistant Commissioner O’Neill. The court's ruling allowed the documents to be admitted into evidence. The orders of the court mandated that the objection to the evidence be overruled, aligning with Rule 39.32 of the Federal Court Rules 2011.