Yan, Mei Mei (aka Quinnie Wong) v Deputy Commissioner of Taxation

[1998] FCA 1052

FEDERAL COURT OF AUSTRALIA

EVIDENCE – objection to affidavit on basis of hearsay – whether O 33 r 2 is a code for admission of hearsay evidence in interlocutory hearings – whether evidence complies with O 33 r 2 – whether s 8 of the Evidence Act applies to O 33 r 2 – whether s 8 of the Evidence Act has the effect of excluding the operation of s 75 of the Act.

Evidence Act 1995 (Cth) ss 8, 75
Federal Court Rules O 33 r 2

MEI MEI YAN (aka QUINNIE WONG) v DEPUTY COMMISSIONER OF TAXATION

NG 7468 of 1997

EMMETT J
SYDNEY
27 JULY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 7468  of  1997

RE:	MEI MEI YAN (aka QUINNIE WONG) Debtor
EX PARTE:	DEPUTY COMMISSIONER OF TAXATION Petitioner

JUDGE:	EMMETT J
DATE:	27 JULY 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR:  The Commissioner of Taxation (“the Petitioner”) seeks to read an affidavit of Grahame Bell of 29 April 1998.  Objection is taken to a paragraph which provides as follows:

Exhibited hereto and marked GB1 are two volumes of witness statements and related documents concerning financial activities of the respondent and her sister Betty Wong during the period 1996 until about June 1997.  These documents comprise the prosecution brief in the criminal proceedings against the respondent and Betty Wong, referred to as the criminal brief.  In addition the petitioner seeks to tender the two volumes of statements that are marked GB1.

Objection is taken on the basis that the material is hearsay and that neither Order 33 Rule 2 of the Federal Court Rules nor section 75 of the Evidence Act 1995 (Cth) (“the Act”) operate to render the material admissible. Senior counsel for Quinnie Wong (“the Debtor”) argues that Order 33 Rule 2 should be construed as being a code, in effect, for the admission of hearsay evidence on the hearing of an interlocutory application.

If that were so, reliance would then be placed on section 8 of the Act which relevantly provides that the Act does not affect the operation of regulations that are made under an Act other than the Act and are in force on the commencement of section 8. There is a proviso that the subsection ceases to apply to a regulation once it is amended after that commencement. The contention is that the rules made under the Federal Court of Australia Act 1976 (Cth) are regulations made under an Act other than the Act. The rules were in force on the commencement of section 8 and Order 33 Rule 2 has not been amended after the commencement of section 8.

I consider that there is a fallacy in that argument because Order 33 Rule 2 is not a code.  Rule 2 assumes the common law prohibition on the admissibility of hearsay evidence and is no more than an exception to that common law rule.  I do not read in Rule 2 a prohibition on the admission of hearsay evidence generally.  There is nothing in Order 33 generally or in Order 33 Rule 2 in particular which would preclude the admissibility of hearsay evidence if that evidence is otherwise admissible under a provision such as the Evidence Act.

It is also said that the material sought to be relied upon does not strictly satisfy Order 33 Rule 2 for two reasons.  First, there is no evidence of undue delay or inconvenience which might be caused, although senior counsel concedes that that may well be an inference which could be drawn.  The other basis upon which it is said that Order 33 Rule 2 has not been satisfied is that the evidence tendered is not a statement on information and belief but is simply a tender of what appear to be signed statements.  I should be satisfied, therefore, that on the evidence in its present form, Order 33 Rule 2 has not been complied with.

However, section 75 of the Evidence Act provides as follows:

In an interlocutory proceeding the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source. 

It is not contended on behalf of the Debtor that section 75 has not been complied with. I do not consider, for the reasons I have indicated, that section 8 has the effect of excluding section 75. Accordingly I would allow the material to be tendered.

I certify that this and the preceding page is a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             27 July 1998

Counsel for the Petitioner:	P. Roberts
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	D.M.J. Bennett QC with A.J. O’Brien
Solicitor for the Respondent:	John Walsh & Partners
Date of Hearing:	27 July 1998
Date of Judgment:	27 July 1998