Different Solutions Pty Limited v Commissioner, Australian Federal Police

REASONS FOR JUDGMENT 1 This afternoon the first respondent obtained leave to file in Court an affidavit of Josephine Balen, a compliance officer with the Australian Taxation Office, which was sworn on 15 September 2008 - that is to say, today. A copy of the affidavit was apparently made available to senior counsel for the applicants this morning, but only at a relatively late hour. The applicants oppose leave being granted to the first respondent to use the affidavit. 2 Order 14, rule 7(1) of the Federal Court Rules ('the Rules') provides: '7(1) A party intending to use an affidavit shall serve it on each other interested party not later than a reasonable time before the occasion for using it arises.' 3 Reasonableness is something that needs to be determined in the context of the factual matrix in which the affidavit comes to be filed. Senior counsel for the first respondent has indicated that if permitted to use the affidavit he would only seek to read paragraphs 1, 2, 3 and 4, 8, 11, 13, 14 and 15. 4 There are two parts of the affidavit which need to be addressed. Firstly, paragraph 11 relates to physical activity in which the deponent of the affidavit is said to have engaged at about 9:45am on 31 July 2007, when a warrant authorising the search of premises at 26 - 32 Pirrama Road, Pyrmont was executed. 5 The other important parts of the affidavit which the first respondent would wish to read are paragraphs 13, 14 and 15, which relate to the formation of a belief by Ms Balen which led to her seizure of a compact disk which she said that she seized at about 9.45 am on 31 July 2007. Senior counsel for the applicants indicates that he would need to have an opportunity to serve a notice to produce or a subpoena, on Ms Balen requiring the production of records which would allow her belief, to which she has deposed, to be tested. 6 The other matter that poses an embarrassment for the applicants is the fact that the applicants would need to consult with officers of the first respondent who were present at the Pyrmont premises on 31 July 2007, to enable them to cast light on whether what Ms Balen said occurred, in fact occurred. It may be that if Ms Balen's affidavit is read, counsel for the applicants won't immediately be in a position to proceed with her cross-examination and may need a small amount of additional time to enable them to prepare themselves for cross-examination. In relation to diary notes that may go to the question of Ms Balen's belief, to which she has deposed in paragraphs 13, 14 and 15, they could be made available for inspection at 10.15 am tomorrow, 16 September 2008, or perhaps earlier. 7 Earlier today evidence was given by a Mr Tu, who is a systems administrator employed by the first applicant, and who was present at the Pyrmont premises, watching what was going on, on the morning of 31 July 2007. Two affidavits sworn by Mr Tu were read, and he offered himself for cross-examination in relation to the evidence relevant to the issues in the proceedings. 8 In my opinion, leave ought to be granted to the first respondent to read the affidavit of Josephine Balen, notwithstanding the late service of a copy of it on the applicants. Under Order 1, rule 8 of the Rules, it is open to the Court to dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance arises. What is important is that the interests of justice are served by the manner in which the case proceeds. 9 In my opinion, such prejudice as the applicants may suffer by virtue of the late service of the affidavit of Ms Balen can be overcome by putting the first respondent on strict terms in relation to those parts of the affidavit which are to be read, and ensuring that such documents as the applicants may wish to access to allow the belief of Ms Balen to be tested are produced in a timely fashion. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.