S.P. Investments Pty Ltd v Commissioner of Taxation Perron Investments Pty Ltd v Commissioner of Taxation - [1989] FCA 374

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PRACTICE AND PROCEDURE - admlsslbillty of affidavit - oplnlon evldence - legal effect of document - whether law of Western Australia foreign law - document not produced - posslble liability to stamp duty - paragraph of affidavit struck out.

Phipson on Evidence 13th Edltlon para.27-43

S.P. INVESTMENTS PTY LTD a s T r i l s t e e of t h e T..M. R r ~ n n a n Trrrat

- - - - - - . . - - - - - - - . - - - - - - - - - - - - - - - - - - - -. . - - . . - - - . . . . -. . - - - - -

v COMMISSIONER OF TAXATION

NO. WAG 113 of 1988
PERRON INVESTMENTS PTY LTD v COMMISSIONER OF TAXATION

No. WAG 129-130 of 1988

FRENCH J .

22 MAY 1989

PERTH

IN THE FEDERAL COURT 1
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY )
GENERAL DIVISION

) NO. WAG 113 of 1988

B E T W E E N : S.P. INVESTMENTS PTY LTD as Trustee
for the L.M. Brennan Trust

Applicant
COMMISSIONER OF TAXATION
Respondent

Nos. WAG 129-130 of 1988

B E T W E E N : PERRON INVESTMENTS PTY LTD

Applicant
COMMISSIONER OF TAXATION
Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER: FRENCH J.
DATE OF ORDER: 22 MAY 1989
WHERE MADE: PERTH
THE COURT ORDERS THAT:

1. Paragraph 8 of the Affidavit of John Robin Haywood filed

the 9 day of January 1989 will be struck out.
Note: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT )
OF AUSTRALIA 1
WESTERN AUSTRALIA 1
DISTRICT REGISTRY 1
GENERAL DIVISION

1 No. WAG 113 of 1988

B E T W E E N : S.P. INVESTMENTS PTY LTD as Trustee
of the L.M. Brennan Trust

Applicant
COMMISSIONER OF TAXATION
Respondent

NOS. WAG 129 -130 of 1988

B E T W E E N : PERRON INVESTMENTS PTY LTD

Applicant

COMI~IISSIONER OF TAXATION
Respondent

CORAM: FRENCH J .
22 May 1989

EX TEMPORE REASONS FOR DECISION ON ADMISSIBILITY

OF AFFIDAVIT IN SUPPORT OF MOTION FOR CHANGE OF VENUE

In this motion for change of venue, the applicant seeks to rely upon the affidavit of one of the partners in the firm of solicltors who act as agents for its Sydney solicitors. ~n particular, it relles upon a part of the affldavlt which refers to

a deed under which certain royalties are said to have been asslgned to the National Mutual Llfe Association of Australasia

Limited. The deed is mentioned in the proposed statement of grounds of appeal.

The Deed, it is said, was executed in the Australian Capital Territory and has rema~ned

there since its execution. The

affidavit gives what is in form, opinion evidence on the effect of the Western Australian stamp duty legislatlon on the deed, and the liabilities that m ~ g h t flow therefrom if it were brought into this State and that is evidently to lay the grounds for a contention that for that reason, among others, the appllcatlon should be dealt with outside Western Australia.

Now, the particular paragraph in question, which is objected to by the respondent, reads as follows:

"I have been in practice since 1967 and throughout my professional career I have specialised in the area of Revenue Law. In so doing I have familarised myself with the stamp duty legislatlon in Western Australia and can speak with authority as to its terms and effect. I have perused an unexecuted copy of the Deed referred to in paragraph 7 hereof and say that in my oplnion the Deed if brought into Western Australla would be chargeable with stamp duty under the Stamp Act of Western Australia and in my opinion in a substantial sum. In my oplnion if the Deed is not brought into Western Australia or does not fall within the ambit of Section 27 of the Stamp Act of Western Australia it wlll not be chargeable w ~ t h
duty."
Objection is taken on the following bases:
1.   That the evidence proffered in the paragraph is

ev~dence as to the law and not admissible on that
basis.
2.   That it refers to the content of a deed without production of the deed.
3.   That it purports to be opinion evidence without

disclosing the facts upon w h ~ c h it is based. That
is to say, it is submitted that there is nothing on
which the opinlon offered could be tested.

The applicant contends that this Court, in the exercise of federal jurisdictlon, should regard the law of the State of Western Australia as forelgn law and thus be prepared to receive opinion evldence from experts in that law as a matter of fact in determining what it is. I have no doubt that that submission is incorrect. The Federal Court in exercising the jurisdictlon that it has throughout Australia, can treat the law of any State as part of the body of law which it has to consider. Whether or not the question arlsing under State law falls wlthin the accrued jurisdiction or that conferred by cross vesting legislation, or otherwise, does not matter. So far as the foreign law submission is concerned I have no difficulty in rejecting it.

Now, it is said otherwise, that the opinion given by the deponent is as to the interaction of the deed and the law and that that is a matter of fact upon whlch an oplnion can be given. Reference was made to the 13th Edltlon of Phlpson on Evidence at para.27-43 in that regard. There it is said that:

"...And a witness as to the relevant law may add hls
oplnion of the effect of that law on a particular
instrument , e.g. trust, before the court."

That observatlon was made in the context of a case where the law in question was foreign law and the witness was deposing as to a matter of fact when he deposed as to the law. As I have already indicated, no question of foreign law arises here. And the opinion that is offered in the paragraph is, I think, on a mixed question of fact and law. The question of fact concerns the contents of the deed, the question of law relates to the liabilities, if any, that arise by reason of its terms.

I am satisfied that what the paragraph attempts to do is to offer, at least in part, an opinion as to the legal effect of a particular deed. And that it seeks to rely upon the contents of the deed to support that opinion wlthout disclosing those terms, or contents, or producing the deed itself. And that does involve to a degree secondary evidence.

Now the ordlnary rule is that the contents of private documents must be proved by primary evldence subject to various exceptions when secondary evidence will be permitted. One of those is impossibility or inconvenience of production - Phipson para.36-31. The possible liability to stamp duty in this State does not give rise to a question of impossibility or inconvenience of production of the kind contemplated by that text, nor I would have thought, comtemplated by any rule which would allow secondary evidence of the contents of the document. It is a little artifical to talk of secondary evldence since in para.8 nothing at

all is said of the contents of the document. There is some

reference to its operation in para.7. But that merely highlights
the difficulty of asking the Court to act on an oplnlon based on
what is, ~n this case, undisclosed fact.

And ~f I were wrong in that, I think that would only defer the problem, because it would then arlse when the respondent sought, as he probably would, to cross-exam~ne the deponent as to his opinion. There could in those c~rcumstances be no deny~ng the respondent the right to call for the production of the deed for that purpose. For those reasons, in my opinion, para.8 is not admissible and ought to be struck out.

I certify that t h ~ s and the preceding
four (4) pages are a true copy of
the Ex tempore Reasons for Judgment of
hls Honour Justlce French.

Date: 2 5 -> ,,

Assoclate: 7-2 , , /L * -'-+i
/

Counsel for the Applicant: Mr R. Meadows

Solicitors for the Applicant: Freehill Hollingdale & Page

Counsel for the Respondent: Mr R. Le Mlere

Solicitors for the Respondent: Australlan Government Solicitor

Date of Hearing: 22 May 1989

Date of Judgment: 22 May 1989

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S.P. Investments Pty Ltd v Commissioner of Taxation Perron Investments Pty Ltd v Commissioner of Taxation [1989] FCA 374

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JUDGE MAKING ORDER:	FRENCH J.
DATE OF ORDER:	22 MAY 1989
WHERE MADE:	PERTH
THE COURT ORDERS THAT:

Now the ordlnary rule is that the contents of private documents must be proved by primary evldence subject to various exceptions when secondary evidence will be permitted. One of those is impossibility or inconvenience of production - Phipson para.36-31. The possible liability to stamp duty in this State does not give rise to a question of impossibility or inconvenience of production of the kind contemplated by that text, nor I would have thought, comtemplated by any rule which would allow secondary evidence of the contents of the document. It is a little artifical to talk of secondary evldence since in para.8 nothing at	all is said of the contents of the document. There is some	reference to its operation in para.7. But that merely highlights
the difficulty of asking the Court to act on an oplnlon based on what is, ~n this case, undisclosed fact.
And ~f I were wrong in that, I think that would only defer the problem, because it would then arlse when the respondent sought, as he probably would, to cross-exam~ne the deponent as to his opinion. There could in those c~rcumstances be no deny~ng the respondent the right to call for the production of the deed for that purpose. For those reasons, in my opinion, para.8 is not admissible and ought to be struck out.