McEwan v The Commissioner of Taxation

In the matter of McEwan v The Commissioner of Taxation, the parties were engaged in a dispute concerning tax assessments and penalties. The proceedings were before the Federal Circuit and Family Court of Australia. The Commonwealth defendants sought leave to bring applications for summary judgment and to strike out the plaintiff’s claims, arguing that the plaintiff's claims were not maintainable. The plaintiff, in turn, sought to re-join a second defendant and to rely on prior and amended affidavits in the proceedings. Additionally, the plaintiff applied for leave to inspect documents claimed to be protected by legal professional privilege.

The court was required to decide several procedural matters, including whether to grant leave for the defendants to bring summary judgment and strike-out applications at a late stage of the proceedings. The court also had to determine whether the plaintiff should be permitted to re-join a second defendant after discontinuing the proceedings against them due to potential delays. Further, the court needed to decide whether the plaintiff could rely on prior and amended affidavits, and whether the parties could rely on evidence-in-chief that had not been filed and served in accordance with the court's directions. Lastly, the court had to decide whether to exercise its discretion to inspect documents claimed to be privileged.

The court refused the Commonwealth defendants' applications for leave to bring summary judgment and strike-out applications, finding that the timing of the applications did not warrant granting leave. The court permitted the plaintiff to re-join Mr Rains as the second defendant, considering that the parallel proceedings had been dismissed and no longer posed a risk of delay. The court also refused the plaintiff leave to rely on her amended statements of claim and affidavits, finding that the applications were made out of time and would not be in the interests of justice. The court further held that the parties could not rely on evidence-in-chief that had not been filed and served in accordance with its directions. Finally, the court refused the plaintiff's application for inspection of documents claimed to be privileged, finding that the plaintiff had not demonstrated a sufficient need for inspection.

The court ordered that the Commonwealth defendants' applications for leave to bring summary judgment and strike-out applications were to be refused. The court also ordered that Mr Rains could be re-joined as the second defendant. Additionally, the plaintiff was not granted leave to rely on her amended statements of claim and affidavits, and the parties could not rely on unfiled evidence-in-chief. Lastly, the plaintiff's application for inspection of privileged documents was refused. The court further indicated that it would hear the parties on the issue of costs.