Hua Wang Bank Berhad v Commissioner of Taxation (No 3)

[2013] FCA 262

FEDERAL COURT OF AUSTRALIA

Hua Wang Bank Berhad v Commissioner of Taxation (No 3) [2013] FCA 262

Citation:

Hua Wang Bank Berhad v Commissioner of Taxation (No 3) [2013] FCA 262

Parties:

HUA WANG BANK BERHAD v COMMISSIONER OF TAXATION

File number:

NSD 653 of 2011

Parties:

BYWATER INVESTMENTS LIMITED v COMMISSIONER OF TAXATION

File number:

NSD 652 of 2011

Parties:

CHEMICAL TRUSTEE LIMITED v COMMISSIONER OF TAXATION

File number:

NSD 654 of 2011

Parties:

SOUTHGATE INVESTMENT FUNDS LIMITED v COMMISSIONER OF TAXATION

File number:

NSD 655 of 2011

Parties:

DERRIN BROTHERS PROPERTIES LIMITED v COMMISSIONER OF TAXATION

File number:

NSD 656 of 2011

Judge:

PERRAM J

Date of judgment:

22 March 2013

Catchwords:

PRACTICE AND PROCEDURE – Subpoenas – Whether jurisdiction to grant a subpoena in New Zealand

Legislation:

Trans-Tasman Proceedings Act 2010 (Cth) s 2(1)
Evidence and Procedure (New Zealand) Act 1994 (Cth) Pt 2, s 9
Trans-Tasman Proceedings Act 2010 (NZ) s 2(1)

Agreement between the Government of Australia and the Government of New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement Australia-New Zealand signed 24 July 2008, [2008] ATNIF 12 (not yet in force) art 16

Date of hearing:

Heard on the papers

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

7

Counsel for the Applicant:

Mr E Herman

Solicitor for the Applicant

Henry Davis York

Counsel for the Respondent:

Ms E Whan

Solicitor for the Respondent:

Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 653 of 2011

BETWEEN:	HUA WANG BANK BERHAD Applicant
AND:	COMMISSIONER OF TAXATION Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	22 MARCH 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.On the undertaking as to witness expenses contained in Mr Herman’s affidavit of 14 March 2013, leave be granted to the taxpayers to issue the proposed subpoenas to Mr Carren and Mr Manning.

THE COURT DIRECTS THAT:

1.        The subpoena must not be served after 19 April 2013.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 652 of 2011

BETWEEN:	BYWATER INVESTMENTS LIMITED Applicant
AND:	COMMISSIONER OF TAXATION Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	22 MARCH 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.On the undertaking as to witness expenses contained in Mr Herman’s affidavit of 14 March 2013, leave be granted to the taxpayers to issue the proposed subpoenas to Mr Carren and Mr Manning.

THE COURT DIRECTS THAT:

1.        The subpoena must not be served after 19 April 2013.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 654 of 2011

BETWEEN:	CHEMICAL TRUSTEE LIMITED Applicant
AND:	COMMISSIONER OF TAXATION Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	22 MARCH 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.On the undertaking as to witness expenses contained in Mr Herman’s affidavit of 14 March 2013, leave be granted to the taxpayers to issue the proposed subpoenas to Mr Carren and Mr Manning.

THE COURT DIRECTS THAT:

1.        The subpoena must not be served after 19 April 2013.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 655 of 2011

BETWEEN:	SOUTHGATE INVESTMENT FUNDS LIMITED Applicant
AND:	COMMISSIONER OF TAXATION Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	22 MARCH 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.On the undertaking as to witness expenses contained in Mr Herman’s affidavit of 14 March 2013, leave be granted to the taxpayers to issue the proposed subpoenas to Mr Carren and Mr Manning.

THE COURT DIRECTS THAT:

1.        The subpoena must not be served after 19 April 2013.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 656 of 2011

BETWEEN:	DERRIN BROTHERS PROPERTIES LIMITED Applicant
AND:	COMMISSIONER OF TAXATION Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	22 MARCH 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.On the undertaking as to witness expenses contained in Mr Herman’s affidavit of 14 March 2013, leave be granted to the taxpayers to issue the proposed subpoenas to Mr Carren and Mr Manning.

THE COURT DIRECTS THAT:

1.        The subpoena must not be served after 19 April 2013.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 653 of 2011

BETWEEN:	HUA WANG BANK BERHAD Applicant
AND:	COMMISSIONER OF TAXATION Respondent

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 652 of 2011

BETWEEN:	BYWATER INVESTMENTS LIMITED Applicant
AND:	COMMISSIONER OF TAXATION Respondent

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 654 of 2011

BETWEEN:	CHEMICAL TRUSTEE LIMITED Applicant
AND:	COMMISSIONER OF TAXATION Respondent

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 655 of 2011

BETWEEN:	SOUTHGATE INVESTMENT FUNDS LIMITED Applicant
AND:	COMMISSIONER OF TAXATION Respondent

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 656 of 2011

BETWEEN:	DERRIN BROTHERS PROPERTIES LIMITED Applicant
AND:	COMMISSIONER OF TAXATION Respondent

JUDGE:	PERRAM J
DATE:	22 MARCH 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The Trans-Tasman Proceedings Act 2010 (Cth) (‘The Act’) received the Royal Assent on 13 April 2010. Its substantive provisions do not come into force until a Proclamation to that effect is issued: s 2(1). No proclamation is permissible until the Agreement between the Government of Australia and the Government of New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement signed 24 July 2008, [2008] ATNIF 12 (not yet in force), comes into force: s 2(1). Under art 16 of the agreement, it will come into force 30 days after both parties have notified each other that the respective domestic procedures to give effect to the agreement are in place. The Act has languished unused on the Commonwealth’s statute books for three years. A similar fate has befallen the New Zealand Trans-Tasman Proceedings Act 2010 (NZ) which received the Royal Assent on 31 August 2010 but similarly awaits a Proclamation to give it substantive operation: s 2(1).

2. The machinery for commencement of this legislation is in place and has been in place for three years.  The agreement giving rise to that legislation was reached 15 years ago.  The delay in commencement is apparently the result of the present non-existence of rules of court implementing the legislation in some of the Australian states and territories.  It does not, in any universe of discourse, take three year to formulate such rules.  Those responsible for this delay – and it is not the Commonwealth – need to understand the considerable inconvenience and expense their delay is engendering.

3. The taxpayers in this case, understandably enough, assumed that the Act was in force (as indeed its first two sections are) and committed the mistake of applying to this Court for the issue of subpoenas to give evidence to two persons resident in New Zealand. In this folly they were, no doubt, encouraged by Div 34.4 of the Federal Court Rules 2011 (Cth) which reveal the same flawed assumption on their authors’ part.

4. The Act appears to repeal the Evidence and Procedure (New Zealand) Act 1994 (Cth) but the failure to Proclaim the relevant section means that that Act remains in force.

5. Part 2 of that Act authorises this Court to issue subpoenas to persons in New Zealand to give evidence in Australia. Section 9 specifies that in deciding whether to grant leave to issue a subpoena a judge is to take into account the significance of the evidence in question and whether it could be obtained by less expensive means.

6. The taxpayers have undertaken to cover both witnesses’ travel and accommodation expenses.  Both were formerly directors of the Hua Wang Bank Berhad of Samoa and can give evidence about the role of Mr Gould in the affairs of that bank.  This, of course, is one of the central questions in the case.

7. I will grant leave to the taxpayers to issue the proposed subpoenas to Mr Carren and Mr Manning.  I do so on the undertaking proffered in the affidavit supporting the present application.  I direct that the subpoena must not be served after 19 April 2013.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated:       22 March 2013