Accessibility needs or impairments or vulnerabilities of a party or representative

1. The Applicant will be 85 years old when a substantive hearing takes place. The Applicant identified certain medical conditions which he believes will make it difficult for him to travel to Australia, based on the need to sit for lengthy periods in flight. This includes his back and knee issues, and his prostate condition. He will need to be accompanied to and from Malaysia.
2. The Applicant stated that he has a hearing impairment and that technology such as audiovisual platforms may assist him with managing volume control, such that he could hear proceedings better than being in a room with the person speaking.
3. The Respondent said that although the Applicant might be 'uncomfortable' due to his medical conditions, these should not preclude him from travelling to Perth or Melbourne. The Respondent noted that the Applicant had taken flights within Asia over the past 12 months. The Respondent's representative told the Tribunal that any such discomfort that might be experienced by the Applicant would be outweighed by the potential procedural unfairness to the Respondent if it is not allowed to cross-examine the Applicant inperson. The Respondent did not address the Applicant's hearing impairment.
4. In the circumstances of this Applicant, the Tribunal believes his age and numerous medical conditions are a significant matter, particularly in the context of a request for him to travel from Malaysia to Australia. The Tribunal acknowledges that it has facilities at its premises to assist participants who have a hearing impairment, however it has a concern for the Applicant's wellbeing and dignity should he be required to travel and attend one of the Tribunal's registries in Australia based on his other health matters. Should the Applicant be required to travel to Australia and the travel adversely affected his health, this might also affect the ability of the hearing to proceed efficiently.

Nature and complexity of legal and factual issues and extent to which Tribunal may need to assess credibility of Applicant's evidence

1. The Respondent contends that the nature and complexity of the issues involved in this dispute are such that an in-person hearing is necessary. The matters in dispute are complex, span several years and include allegations by the Respondent of fraud and evasion on the part of the Applicant. The Applicant bears the onus of proof in this matter under section 14ZZK of the TAA_._
2. It is not controversial that the Applicant is a central witness to his tax affairs. Accordingly, the Respondent contends that the Applicant's credibility is at the heart of the dispute and that the outcome of the Tribunal proceeding is likely to turn on the Tribunal's assessment of the credibility of the oral evidence given by the Applicant. In this regard the Respondent submitted that it should not be deprived of 'the subtle, but often very real advantage of having the applicant in the witness box and in the same room as the cross-examiner in the particular circumstances of this case.'
3. The Respondent provided the Tribunal with references to a number of case authorities[6] where concerns or reservations had been expressed by courts about the effectiveness of video link arrangements for the giving of oral evidence, particularly where issues of credibility arose. Some of these authorities also suggested video link technology was not appropriate where cross-examination was likely to be lengthy and/or there was a significant volume of documentary evidence.[7] The Respondent submitted that there was a lack of 'functional equivalence' between evidence given by audiovisual means and that given in person, before the judge or Tribunal Member required to make an assessment of that evidence. Most recently, this was explored in the Court of Criminal Appeal in the New South Wales Supreme Court in R v Walker.[8] This goes beyond the quality of the technology, or the ability to observe facial expressions to a broader issue of the inability of technology to replicate a courtroom experience, including the engagement between participants in the process.
4. The Respondent submitted that another important and related consideration was the 'nature and solemnity of giving evidence in the Tribunal'. Absent a genuinely persuasive reason for the giving of evidence by audiovisual means, the Tribunal should be entitled to see evidence tested 'in a fair and orderly manner' and this would be unlikely to occur if the Applicant was permitted to give evidence remotely. The Respondent referred to observations of Buchanan J in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3)[9] about limitations on the effectiveness of evidence given by audiovisual means, suggesting that a witness will be more conscious of their obligations and the gravity of the hearing where they appear in person, which affords reassurance to a cross-examining party. Less effective cross-examination may prejudice the cross-examining party. In a similar vein, Lee J in Palmer v McGowan (No 2)[10] suggested that a 'different dynamic' may arise between witness and cross-examiner in an online format as compared to an in-person hearing, which may arise from the witness feeling more comfortable in their own surroundings and tone of voice or non-verbal signals may be missed.
5. The Respondent agreed that many of the cases they cited were decided some years ago, and certainly before the COVID-19 pandemic prompted greater use of audiovisual technology. They acknowledged that favourable views about the use of audiovisual links had been expressed by courts during the pandemic when online hearings were conducted of necessity. However, the Respondent referred to more recent cases, including R v Walker, which they said suggested a theme of courts returning to pre-COVID-19 concerns about whether evidence given by audiovisual means was as effective as, or functionally equivalent to, traditional hearing formats.
6. The Applicant's representatives referred the Tribunal to other case authorities in which courts had been far less critical of evidence being given by audiovisual means, noting that some of the earlier critical authorities had been decided without the benefit of exposure to improved modern audiovisual platforms (including MS Teams as now used by the Tribunal). In Auken Animal Husbandry Pty Ltd v 3RD Solution Investment Pty Ltd[11] Stewart J observed that his experience was that well-prepared cross-examination could be just as effective in a virtual setting, including where matters of credit or allegations of fraud were involved.[12] The Applicant provided an example of a more recent 7 day hearing conducted by the Tribunal where the Tribunal referred to the complexity of the facts and evidence, and adverse findings were able to made by the Tribunal about the credibility of a witness who gave evidence by audiovisual link.[13]
7. The Applicant does not believe that the legal and factual issues in dispute are so complex that giving of evidence via an audiovisual link would be a hindrance. On the basis that the Applicant bears the burden of proof under section 14ZZK, the Applicant's counsel submitted that any adverse consequences of evidence being seen as unreliable are likely to be borne by the Applicant rather than the Respondent.
8. The Applicant also pointed to section 50 of the ART Act which requires the Tribunal to act with as little technicality and formality as a proper consideration of the matters before the Tribunal permits, which they believed was relevant to the Respondent's concern about a potential lack of 'solemnity.'
9. Without quoting from each of the authorities provided to the Tribunal by the parties, the Tribunal confirms that it has been made aware by the parties of a range of views held by judicial officers on the reliability of oral evidence given by audiovisual means, particularly where matters of credit are involved. This includes views on how these matters affect the ability of judge or Tribunal member to assess the evidence. Even if accepted that there is not perfect equivalence between remote and in-person evidence, it is acknowledged that the 'balance' of factors for and against giving evidence by audiovisual means will depend on the relevant context.[14] A balancing of circumstances is what is required by sections 9 and 49 of the ART Act, together with the Common Procedures Practice Direction.
10. As stated above, this interlocutory proceeding is not the forum for making findings in relation to the substantive issues underlying the application for review. It is appropriate to note that a significant issue is the residence of the Applicant for certain income years, more particularly whether he was a resident of Australia in those income years and potentially whether there is any operation of the Double Tax Agreement between Australia and Malaysia. The Tribunal agrees that the evidence to be given by the Applicant will be central to the determination of these matters, and that an assessment of the reliability of his evidence will be highly important. However, this does not of itself dictate an in-person hearing.
11. The Tribunal draws the parties' attention to another recent decision of the Tribunal in which an application was made for several witnesses resident in China to give their evidence by video link: FLLH and Commissioner of Taxation. Deputy President Thompson SC helpfully summarised the current approach of the Tribunal to this issue as follows:[15]

The Tribunal's practice is to take evidence by whatever mode is most appropriate in the circumstances of the matter at hand. Whilst the use of electronic means to take evidence was historically uncommon, and generally not regarded as reliable as in-person evidence, the Covid-19 pandemic changed the practice of Courts and Tribunals throughout Australia, and with it changed opinions on the reliability of hearing evidence by audio-visual link (AVL). Taking evidence and conducting hearings by AVL is a daily occurrence in the Tribunal and affords us great flexibility in the way in which the Tribunal hears cases, throughout the whole of Australia. Furthermore, the Tribunal is specifically empowered to take evidence outside Australia.

12. The FLLH matter involved a three-week hearing concerning amended assessments issued using the 'asset betterment' method. Several witnesses were to give evidence with the assistance of interpreters. DP Thompson SC described the issues as 'factually and procedurally complex.' At this time the Tribunal was operating in the context of the Common Procedures Practice Direction paragraphs set out above.
13. The Tribunal does not believe that the Respondent will be subject to procedural unfairness if required to cross-examine the Applicant by audiovisual means rather than in-person. Although this case might not be described as 'simple' the Tribunal accepts the submissions of the Applicant that the issues involved are not at the highest end of complexity. The Tribunal is not convinced that the Member presiding over the substantive hearing will have difficulty in assessing the reliability of the Applicant's evidence by reason of the use of audiovisual link alone.
14. The Respondent raised a specific concern about the possibility that one of the Applicant's solicitors might be physically present with the Applicant as the Applicant gave his evidence by audiovisual link which could compromise the evidence giving process. The Applicant's representatives indicated that they would be willing to discuss with the Respondents arrangements for an independent lawyer to be retained in Malaysia to provide any practical assistance to the Applicant (such as navigating copies of documentary evidence during cross-examination).

Number, nature, location and availability of witnesses

1. Other than the Applicant, three witnesses have been identified as potentially being required to give evidence. One of those witnesses is located in Kuala Lumpur, with the other two (including the Applicant's former tax agent) based in Perth. The Respondent has agreed that it is appropriate for those three individuals to give their evidence via audiovisual link (that is, even where they are located in Australia).
2. In relation to the witness located in Malaysia, the Applicant's representative said that arrangements could be made for this witness to give evidence from the same location in Kuala Lumpur as the Applicant. Based on that witness having filed only a very brief witness statement, the Respondent said that it may not need to cross-examine this witness or cross-examination would be very limited.
3. These matters do not suggest a need for an in-person hearing, and tend to support an online mode being appropriate.

1. Leaving aside the materials filed in relation to this interlocutory point, the Respondent referred to approximately 2900 pages of evidence having been filed so far in this matter, upon which the Applicant would be cross-examined. The Respondent indicated that it was likely to require approximately a day and a half to cross-examine the Applicant on his evidence.
2. The Respondent cited authorities in which courts identified potential difficulty for a cross-examination involving significant documentation to gain momentum resulting in unfairness to the cross-examining party.[16] Again, the Applicant has cited other examples of matters before courts and this Tribunal where witnesses have been cross-examined remotely across several days on volumes of documentary evidence.[17]
3. It is the view of this Member that a few thousand pages of evidence in a taxation matter, although not insignificant, is not necessarily unusual. Had a self-represented applicant been involved, this might have been a factor tending towards an in-person hearing where in-hearing room assistance could be provided with handling of documentary evidence.[18] However, in this case both parties are well represented and well resourced.

1. It is not in dispute that in May 2025 the Applicant participated from Kuala Lumpur in a Tribunal directed mediation process by video link (MS Teams). One of his Australian legal representatives travelled to Kuala Lumpur to assist him at the mediation. This supports the Applicant's contention that he has the capability to participate in Tribunal case events remotely.
2. The Applicant raised the question of the costs he would incur if his wife had to travel to Malaysia to escort him to Australia, he and his wife had to pay for hotels in Melbourne or his legal representatives needed to be accommodated away from Melbourne. The Respondent does not believe that the incurrence of travel or accommodation costs by the Applicant (whether for himself or his legal team) should be given much weight by the Tribunal. The Respondent notes that the factual background to this matter involves the transfer of significant funds from Australia to Malaysia by the Applicant. The Tribunal agrees with the Respondent that issues of cost should not be given significant emphasis in this matter.
3. The Applicant's representatives identified a concern that if the Applicant was required to travel to Australia to give his evidence in person, the Respondent might seek a Departure Prohibition Order ('DPO') preventing the Applicant from returning to Malaysia. The Applicant referred to discussions in relation to seeking an undertaking from the Respondent that it would not issue a DPO. As at the date of this interlocutory hearing this matter had not been resolved between the parties. The Respondent contended that this was not a relevant consideration for the Tribunal to take into account in determining how the Applicant should give his evidence, in part because in his submissions the Applicant had only identified his age and health as the basis for his request to give evidence remotely. As the Tribunal has decided for reasons unrelated to any DPO that the Applicant should not be required to give evidence in-person in Australia it is not necessary for the Tribunal to consider any potential risk of a DPO being issued.
4. There is another matter the Tribunal wishes to draw to the attention of the parties. In FLLH Deputy President Thompson SC noted that section 75 of the ART Act specifically empowers the Tribunal to take evidence outside Australia, however an issue arose under the laws of the People's Republic of China (PRC) as to whether consent of the PRC would be necessary for the witnesses in that matter to be permitted to give their evidence from the PRC (by audiovisual link). DP Thompson SC referred to other cases, including the Auken Animal Husbandry[19] decision cited by the Applicant's counsel in this proceeding, where this concern has arisen. DP Thompson SC outlined certain differences between the Tribunal and its procedures which differ from courts and civil litigation, but indicated that based on the novelty and uncertainty of these issues she would not have allowed an audiovisual link to the PRC. The question in FLLH was ultimately resolved by the witnesses being permitted to give their evidence from Singapore which did not raise a question of Chinese sovereignty but still addressed the difficulties that would have been faced by the witnesses in travelling to Australia. Logistical issues were left for the Member hearing the substantive matter to address.
5. In the present interlocutory application neither party raised a question or concern about a sovereignty issue arising under Malaysian law or the need for any approval or permission from Malaysian authorities. Earlier this year the Applicant and his legal representative participated in a Tribunal led mediation by video link from Malaysia, although alternative dispute resolution processes may not raise the same issues. The Applicant's Statement indicates that he has managed travel to nearby locations in Asia (including Singapore) over the past 12 months, which might provide scope for an alternative location if this became necessary.

1. The Tribunal will make directions that the Applicant be permitted to give his evidence via video link from Malaysia. The Tribunal believes that age and medical conditions of the Applicant create risks for him and his ability to present his case which outweigh the concerns relating to potential procedural disadvantage or unfairness to the Respondent from an audiovisual format, noting that the Tribunal is not convinced that any such procedural unfairness would arise.
2. Further, if all witnesses are to give evidence remotely (including the Applicant) the Tribunal does not believe there are other circumstances which suggest that an in-person hearing is otherwise necessary or appropriate. The Tribunal will direct that the matter be listed (again) for a hearing by video (MS Teams).
3. Previous listing dates for the hearing have already been changed and with the understanding now that the Applicant will give evidence remotely the parties may wish to seek further directions from the Tribunal as to matters relating to the practical management of the hearing, such as start and finish times on hearing days and the format for preparation of a Tribunal Book or other materials for the hearing. These matters are more appropriately to be determined by the Member who is constituted to hear the matter. Should the parties become aware of any impediment to the Applicant giving evidence from Malaysia in particular, they may require further directions from the Tribunal as to an alternative venue in Asia.

[1] See Annexure SC-1 to the Affidavit of Shaun Cartoon.

[2] Subsections 79(2) and (3) set out certain matters upon which the Tribunal may give directions but the Tribunal is not limited to those matters.

[3] Subparagraph 5.3(d) covers the situation where there is a history of family violence involving a party and is not relevant to the present circumstances.

[4] Paragraph 12 of the Respondent's Submissions. At the interlocutory hearing the Respondent's senior counsel referred to the reasons given by the Applicant not meeting a 'threshold.'

[5] See for example sections 47A and 47C of the Federal Court Act 1976 (Cth).

[6] The Respondent provided a copy of 19 decisions of the Federal Court, Full Court of the Federal Court, Supreme Court of New South Wales and Supreme Court of Victoria.

[7] For example, Commissioner of Taxation v Oswal (No 5) [2015] FCA 1504 at [28] per Gilmour J.

[8] R v Walker [2025] NSWCCA 62. See for example the extensive discussion of authorities and academic research from paragraph [32] by Dhanji J.

[9]Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; (2009) 181 FCR 152 at [77] to [78].

[10] Palmer v McGowan (No 2) [2022] FCA 32 at [45] to [46].

[11] Auken Animal Husbandry Pty Ltd v 3RD Solution Investment Pty Ltd [2020] FCA 1153 per Stewart J, referring to the decision in Campaign Master (UK) which was cited by the Respondent.

[12] See also Capic v Ford Motor Company of Australia Limited [2020] FCA 486 at [19]- [20] per Perram J.

[13] Earlmist Pty Ltd atf Earlmist Unit Trust and Commissioner of Taxation [2023] AATA 978.

[15] FLLH and Commissioner of Taxation [2025] ARTA 216 ('FLLH') at [6]. '

[16] A_MP Ltd v Chubb Insurance Australia Ltd (No 2)_ [2025] NSWSC 789, Bicheno Investments Pty Ltd v Winterbottom (No 2) [2017] NSWSC 413.

[18] It is noted that recent practice of the Tribunal is that in-hearing room support is not provided unless special circumstances apply.

[19] See Auken Animal Husbandry at [33] to [35] where the question was resolved on the basis of the applicant providing evidence that approval from the PRC had been obtained.