Leagou Pty Limited v Commissioner of Taxation

In the matter of Leagou Pty Limited v Commissioner of Taxation, the Federal Court addressed an application by the Commissioner of Taxation to be released from Harman undertakings in respect of certain affidavits of evidence. These undertakings were originally given in proceedings concerning tax disputes and were intended to limit the use of the affidavits to the specific matters of those proceedings. The Commissioner sought to use these affidavits in separate defamation proceedings initiated by Mr Vanda Russell Gould against Mr Jordan, where the Commissioner was pleading that certain defamatory imputations made by Mr Jordan were substantially true. The primary legal issue before the court was whether the Harman undertakings were applicable to the affidavits in question and, if so, whether they could be used in the defamation proceedings without the consent of the affiants.

The court found that the Harman undertakings did apply to the affidavits in question, as they were given in the context of specific tax dispute proceedings. However, the court also concluded that the affidavits were made voluntarily and that there was no significant prejudice to the affiants or the parties involved in allowing their use in the defamation proceedings. The court considered that the affiants, Mr Gould and the Commissioner, had not opposed the release of the affidavits, and other parties involved also did not express any opposition. Given these circumstances, the court was satisfied that releasing the Commissioner from the implied undertakings was appropriate. Consequently, the court granted the Commissioner's application, permitting the use of the specified affidavits in the defamation proceedings.

Accordingly, the court made an order releasing the Commissioner from the Harman undertakings in relation to the affidavits of Vanda Russell Gould sworn on 7 February 2012, as well as the affidavits in relation to Hua Wang Bank Berhad, SIF, and Bywater, allowing their use in the defamation proceeding NSD1735/2017. The court noted that the release did not extend to certain paragraphs of the First Leagou Affidavit. The court further directed that the parties would be heard regarding the costs associated with the application.