Hua Wang Bank Berhad v Commissioner of Taxation (No 15)

The case of Hua Wang Bank Berhad v Commissioner of Taxation (No 15) dealt with the interpretation and application of sections of the Evidence Act 1995 (Cth) and the Federal Court Rules 2011 (Cth) in relation to the admissibility of evidence provided via affidavit. The primary issue before the court was whether a sworn affidavit constitutes indirect evidence for the purposes of section 128(7)(b) of the Evidence Act 1995 (Cth). The case also examined the distinction between oral testimony and affidavit evidence, particularly within the context of civil proceedings in the Federal Court of Australia.

The court was required to determine the scope of evidence to be included under section 128(5) of the Evidence Act 1995 (Cth) and whether an affidavit, once read in court, can be considered indirect evidence under section 128(7)(b). The court had to examine the legislative intent behind the Evidence Act and the Federal Court Rules, particularly focusing on the distinction between the act of swearing an affidavit and the act of presenting it as evidence at trial. The decision hinged on whether the mere swearing of an affidavit under Division 29-1 of the Federal Court Rules constitutes the giving of evidence under section 47 of the Federal Court of Australia Act 1976 (Cth).

The court held that the mere swearing of an affidavit under Division 29-1 of the Federal Court Rules does not equate to the giving of evidence under section 47 of the Federal Court of Australia Act 1976 (Cth). The court reasoned that the giving of evidence by affidavit at trial, as permitted under section 47, occurs only when the affidavit is read in court. Therefore, the act of swearing an affidavit is not the same as the act of presenting it as evidence at trial. This distinction is crucial because it means that the certificate under section 128(5) of the Evidence Act 1995 (Cth) does not apply to the mere swearing of an affidavit, but rather to the act of presenting it as evidence at trial.

In light of this reasoning, the court granted the certificates under section 128(5) of the Evidence Act 1995 (Cth) to Dr Joseph Ross and Mr John Leaver in respect of the evidence given by them in specified proceedings. These certificates were to be effective from 2 October 2013. The court's decision clarified the interpretation of the Evidence Act and the Federal Court Rules regarding the use of affidavit evidence and the distinction between the act of swearing an affidavit and its presentation as evidence at trial.