FEDERAL COURT OF AUSTRALIA

Denlay v Commissioner of Taxation [2010] FCA 1517

THE COURT ORDERS THAT:

1.    As to the documents which comprise Exhibits 31 and 32 to the affidavit of AJ Tiplady dated 23 August 2010 namely a copy of a Media Communiqué dated 24 February 2008 and issued by the LGT Group Foundation entitled “LGT: Illegally disclosed data material limited to the client data stolen from LGT Treuhand in 2002 – Further Information about the offender and the circumstances of the data theft” and copy of a press release dated 27 February 2008 from the Liechtenstein Office of the Public Prosecutor:

(a)    Each document falls within the exception in s 60(1) of the Evidence Act 1995 (Cth) and is admissible as proof of the fact of the existence of a document containing particular allegations.

(b)    Only so much of the communiqué which is Exhibit 31 as relates to or contains representations of events directly concerning the bank and the bank’s affairs is further admissible pursuant to the exception in s 69 of the Evidence Act 1995 (Cth). For the avoidance of doubt that means that so much of the document as concerns actions of the government of Liechtenstein itself or actions that Mr Keiber is alleged in the document to have taken vis-à-vis princely officers of Liechtenstein is not admissible as proof of these representations pursuant to the exception in s 69.

(c)    Exhibit 31 is further admissible, pursuant to the exception in s 69 of the Evidence Act 1995 (Cth) as proof of the representations contained therein.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

THE COURT ORDERS THAT:

1.    As to the documents which comprise Exhibits 31 and 32 to the affidavit of AJ Tiplady dated 23 August 2010 namely a copy of a Media Communiqué dated 24 February 2008 and issued by the LGT Group Foundation entitled “LGT: Illegally disclosed data material limited to the client data stolen from LGT Treuhand in 2002 – Further Information about the offender and the circumstances of the data theft” and copy of a press release dated 27 February 2008 from the Liechtenstein Office of the Public Prosecutor:

(a)    Each document falls within the exception in s 60(1) of the Evidence Act 1995 (Cth) and is admissible as proof of the fact of the existence of a document containing particular allegations.

(b)    Only so much of the communiqué which is Exhibit 31 as relates to or contains representations of events directly concerning the bank and the bank’s affairs is further admissible pursuant to the exception in s 69 of the Evidence Act 1995 (Cth). For the avoidance of doubt that means that so much of the document as concerns actions of the government of Liechtenstein itself or actions that Mr Keiber is alleged in the document to have taken vis-à-vis princely officers of Liechtenstein is not admissible as proof of these representations pursuant to the exception in s 69.

(c)    Exhibit 31 is further admissible, pursuant to the exception in s 69 of the Evidence Act 1995 (Cth) as proof of the representations contained therein.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    Objection has been taken to the admission of two exhibits to the affidavit of Mr Tiplady filed on 23 August 2010. Those documents are respectively Exhibits 31 and 32 to the affidavit. They comprise respectively a media communiqué of LGT Group Foundation and a press release – or at least the English translation of a press release – from the Office of the Public Prosecutor in Liechtenstein dated 27 February 2008.

2    The exhibits are said to be admissible on two bases, each by way of an exception to the hearsay rule found in s 59 of the Evidence Act 1995 (Cth) (Evidence Act).

3    The first basis, it is submitted, is that they are admissible by virtue of the exception found in s 60(1) which provides that the hearsay rule does not apply to evidence of the previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact. The position contended on behalf of the Denlays in relation to the documents, insofar as s 60(1) is concerned, is that

(a)    the existence of documents containing the information they do relating to Mr Keiber predates the making of the amended assessments in question;

(b)    the documents are admissible proof of the facts they contain but just for the fact that they exist, and exist in the context of a use that the Commissioner comes to make of information from Mr Keiber for the purpose of raising amended assessments.

4    It was further submitted that if the documents were within the exception found in s 60 that they would be then in for all purposes.

5    I do not accept the latter proposition because that would offend the notion that they were being tendered for, and said to be relevant for a purpose other than proof of particular asserted facts, namely facts that are the subject of representations in the document.

6    I do accept though, that the mere existence of the documents does have at least an adjectival relevance in the case that the Denlays seek to make in terms of alleged mal-administration. So that I find that each document falls within the exception in s 60(1) in that each document is at a minimum tendered for proof of other than asserted facts namely, particular facts contained in the document as opposed to being tendered just for the fact of the document’s existence containing particular allegations.

7    The question then becomes whether representations in the documents have any wider admissibility. The foundation for that is said to lie in s 69 of the Evidence Act which is the exception in respect of business records. For the Commissioner, it is submitted that the terms of s 69(2) are not engaged, but even if they were there is an element of unfairness or prejudice such that a discretion which reposes in s 136 of the Evidence Act should be exercised so as to limit the use made of the documents. In effect, that limitation would be to confine them just to the fact of their existence with particular allegations rather than as proof of representations contained in the document.

8    As to the question as to whether the documents fall within s 69(2), each document needs to be considered in its own right. The press release from the Office of the Public Prosecutor seems to me to fall squarely within the terms of s 69(2) in that it seems to be inherently likely that the document was one which was made by a person who had, or might reasonably be supposed to have had, personal knowledge of each of the asserted facts in the document. Further, the Commissioner being but the chief revenue collection officer of a sovereign government, namely, the Australian Government, and his interests in the case being wholly related to that capacity, rather than any personal capacity, and further, given that the document has come from the Commissioner on discovery, I find it difficult, if not impossible, to conceive how its admission might be unfairly prejudicial to the Commissioner. “Not unfairly prejudicial” does not, of course, mean that it might provide a basis upon which relief of the kind sought might be established.

9    For those reasons I regard the press release of the Office from the Public Prosecutor admissible not only under s 60(1) as proof of the existence of such a document, but also as more widely admissible as a business record pursuant to s 69(2).

10    That leaves the question as to what wider use, if any, ought to be regarded as established by the media communiqué of the LGT Group Foundation found at tab 31. The difficulty about this document, so far as any wider utility is concerned, is that it is an amalgam of information one might apprehend is within the personal knowledge of an author within the bank as to matters of the bank’s affairs and other information which is of a more general character concerning the actions of the government of Liechtenstein in relation to Mr Keiber and acts by Mr Keiber in respect of the Sovereign Prince of Liechtenstein and another princely officer of that country.

11    I am of course, entitled to have regard to inferences which are apparent on the face of the document. These disclose (see page 3) that the LGT Group is a wealth and asset management group of the Princely House of Liechtenstein. For all that, it seems to me that, even taking into account the reformist qualities of s 69(2) vis-à-vis the common law, it is something of a large step to regard all of that which is in the communiqué as information that was made by a person who had or might reasonably be supposed to have had personal knowledge or, on the basis of information, directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

12    The latter of those two criteria is the one that is the more possibly applicable in relation to information beyond that concerned just with the affairs of the bank. The difficulty though, about that is in being confident about the translation of information upon information into the document.

13    In short then, I am prepared to admit, for wider purposes, so much of the communiqué as relates to or contains representations of, more strictly, events directly concerning the bank and the bank’s affairs, but not to regard it as admissible insofar as it concerns what one might term actions of the government of Liechtenstein itself or actions that Mr Keiber is alleged in the document to have taken vis-à-vis princely officers of Liechtenstein. If need be, I shall take a red pen to the exhibit to distinguish between those two facts in the event of there being some disagreement as to how that ruling sounds between counsel.

Associate:

Dated:    3 March 2011