FEDERAL COURT OF AUSTRALIA

Hua Wang Bank Berhad v Commissioner of Taxation (No 3) [2013] FCA 262

THE COURT ORDERS THAT:

1.    On the undertaking as to witness expenses contained in Mr Herman’s affidavit of 14 March 2013, leave be granted to the taxpayers to issue the proposed subpoenas to Mr Carren and Mr Manning.

THE COURT DIRECTS THAT:

1.    The subpoena must not be served after 19 April 2013.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    On the undertaking as to witness expenses contained in Mr Herman’s affidavit of 14 March 2013, leave be granted to the taxpayers to issue the proposed subpoenas to Mr Carren and Mr Manning.

THE COURT DIRECTS THAT:

1.    The subpoena must not be served after 19 April 2013.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    On the undertaking as to witness expenses contained in Mr Herman’s affidavit of 14 March 2013, leave be granted to the taxpayers to issue the proposed subpoenas to Mr Carren and Mr Manning.

THE COURT DIRECTS THAT:

1.    The subpoena must not be served after 19 April 2013.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    On the undertaking as to witness expenses contained in Mr Herman’s affidavit of 14 March 2013, leave be granted to the taxpayers to issue the proposed subpoenas to Mr Carren and Mr Manning.

THE COURT DIRECTS THAT:

1.    The subpoena must not be served after 19 April 2013.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    On the undertaking as to witness expenses contained in Mr Herman’s affidavit of 14 March 2013, leave be granted to the taxpayers to issue the proposed subpoenas to Mr Carren and Mr Manning.

THE COURT DIRECTS THAT:

1.    The subpoena must not be served after 19 April 2013.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The Trans-Tasman Proceedings Act 2010 (Cth) (‘The Act’) received the Royal Assent on 13 April 2010. Its substantive provisions do not come into force until a Proclamation to that effect is issued: s 2(1). No proclamation is permissible until the Agreement between the Government of Australia and the Government of New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement signed 24 July 2008, [2008] ATNIF 12 (not yet in force), comes into force: s 2(1). Under art 16 of the agreement, it will come into force 30 days after both parties have notified each other that the respective domestic procedures to give effect to the agreement are in place. The Act has languished unused on the Commonwealth’s statute books for three years. A similar fate has befallen the New Zealand Trans-Tasman Proceedings Act 2010 (NZ) which received the Royal Assent on 31 August 2010 but similarly awaits a Proclamation to give it substantive operation: s 2(1).

2    The machinery for commencement of this legislation is in place and has been in place for three years. The agreement giving rise to that legislation was reached 15 years ago. The delay in commencement is apparently the result of the present non-existence of rules of court implementing the legislation in some of the Australian states and territories. It does not, in any universe of discourse, take three year to formulate such rules. Those responsible for this delay – and it is not the Commonwealth – need to understand the considerable inconvenience and expense their delay is engendering.

3    The taxpayers in this case, understandably enough, assumed that the Act was in force (as indeed its first two sections are) and committed the mistake of applying to this Court for the issue of subpoenas to give evidence to two persons resident in New Zealand. In this folly they were, no doubt, encouraged by Div 34.4 of the Federal Court Rules 2011 (Cth) which reveal the same flawed assumption on their authors’ part.

4    The Act appears to repeal the Evidence and Procedure (New Zealand) Act 1994 (Cth) but the failure to Proclaim the relevant section means that that Act remains in force.

5    Part 2 of that Act authorises this Court to issue subpoenas to persons in New Zealand to give evidence in Australia. Section 9 specifies that in deciding whether to grant leave to issue a subpoena a judge is to take into account the significance of the evidence in question and whether it could be obtained by less expensive means.

6    The taxpayers have undertaken to cover both witnesses’ travel and accommodation expenses. Both were formerly directors of the Hua Wang Bank Berhad of Samoa and can give evidence about the role of Mr Gould in the affairs of that bank. This, of course, is one of the central questions in the case.

7    I will grant leave to the taxpayers to issue the proposed subpoenas to Mr Carren and Mr Manning. I do so on the undertaking proffered in the affidavit supporting the present application. I direct that the subpoena must not be served after 19 April 2013.

Associate: 

Dated:    22 March 2013