Seymour v Commissioner of Taxation

PAGONE J: 97 Mr and Mrs Seymour appeal from a decision of this Court setting aside an order made by the Administrative Appeals Tribunal which had granted leave to them to give their evidence by video link at the hearing of their appeal under Part IVC of the Taxation Administration Act 1953 (Cth) ("the Administration Act"). For the reasons which follow I would allow the appeal. 98 Mr and Mrs Seymour have resided in Mauritius since January 2013 after leaving Australia. They are the applicants in proceedings in the Tribunal in which they seek to have the Tribunal set aside three notices of amended assessment by which they have been assessed to pay substantial amounts of unpaid tax and penalties. They are unwilling, however, to give their evidence in Australia and sought a ruling from the Tribunal that their evidence be given by video link from some place outside Australia (although not necessarily from Mauritius). On 7 February 2014 the applicants' counsel made representations to the Tribunal about the proceeding then on foot which included the following submission: Both applicants live outside Australia. The applicants wish to apply for case management directions whereby they can give evidence by video-link, telephone, or alternatively at an evidentiary hearing outside Australia. To that end the applicants have sought the respondents' consent to the appropriate directions, but we have received no response. As the applicants live in Mauritius, the AAT's attitude to how the applicant's evidence will be taken is very relevant to the case management of these proceedings. The applicants respectfully request an interlocutory hearing for the purpose of making this application. Soon after Mr and Mrs Seymour filed affidavits together with substantial other evidence setting out the reasons why they were unwilling to give evidence in Australia. Their application to give evidence by video link was heard on 24 September 2014 as an interlocutory matter long before any date was set for the hearing of the Part IVC proceeding which has not yet taken place. On 27 October 2014 the Tribunal decided to grant leave to Mr and Mrs Seymour to give their evidence in the hearing of the tax appeals by video link and published reasons. On 26 November 2014 the Commissioner applied to this Court by originating application for judicial review of that decision. The Commissioner's application was heard on 12 March 2015 and judgment was given in favour of the Commissioner on 7 April 2015: Commissioner of Taxation v Seymour [2015] FCA 320. 99 The Commissioner's originating application had relied upon seven grounds to contend that the Tribunal had made a jurisdictional error in deciding that Mr and Mrs Seymour could, in due course, give evidence by video link from an unspecified place outside Australia rather than having to give their evidence in person in Australia. His Honour rejected most of the Commissioner's grounds, but found that the Tribunal had fallen into jurisdictional error in two respects. The first was his Honour's finding that the Tribunal had improperly taken into account "the refusal of the taxpayers to come to Australia if they did not receive an assurance that a [departure prohibition order] would not be issued by the Commissioner to prevent, or delay, them from leaving immediately". The second was his Honour's finding that the Tribunal had denied the Commissioner "a reasonable opportunity to present his case by removing the opportunity for effective cross-examination". In my view his Honour erred in finding reviewable error in the Tribunal's decision and in finding exceptional circumstances to set aside a procedural decision of the Tribunal: see Von Stieglitz v Comcare [2014] FCAFC 97 at [55]. 100 The first ground of appeal from his Honour's decision is that the primary judge "erred by determining that procedural fairness requires the [taxpayers] to be available in person for cross-examination". It was contended in the grounds of appeal that this finding was not open to his Honour because (i) there was no rule of law or practice that a party is entitled to insist on the physical presence of a party for cross-examination, (ii) there was no material before the Court about what the live issues were in the Tribunal proceedings, (iii) there was no material before the Court about the evidence that would be given at the Tribunal hearings apart from the names of the 14 persons giving evidence in the Tribunal proceedings and a three page index of the evidence filed by the taxpayers in the proceedings, (iv) there was no material before the Court about how issues of credit arise in connection with the two taxpayers or how, specifically, cross-examination would be impeded if the taxpayers were not physically present in Australia, and (v) the appellants were also entitled to procedural fairness and that this necessitated a balancing exercise of the kind which the Tribunal had undertaken in reaching its conclusions. 101 The Tribunal came to consider whether to allow the taxpayers to give their evidence by video link in what may well have been inappropriate circumstances but that has not been submitted by either party. The application by Mr and Mrs Seymour that they be allowed to give their evidence by video link had been made before the Commissioner had filed his statement of facts, issues and contentions and before the Commissioner had filed the evidence upon which he had sought to rely. The question posed to the Tribunal was, therefore, considered by the Tribunal at what may have been an inappropriate level of generality: the Tribunal did not have the documents identifying all of the issues which needed to be considered (and upon which questions of the mode of giving evidence might depend) and did not have the evidence of the Commissioner from which it could form a view about the impact of cross-examination to the disposition of the case and, therefore, of the significance of cross-examination being by video link. The Commissioner, however, did not challenge the Tribunal's power to deal with the taxpayers' application at that stage and in that context. The Commissioner, rather, relied upon the contention that a taxpayer seeking to give evidence by video link needed to make "a persuasive case" and that the taxpayers had not made such a case. The Commissioner's submission to the Tribunal to that extent relied upon a passage from Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152 at [77] where Buchanan J said: Despite the undoubted efficiencies available in an appropriate case, the trend of authority seems to me to emphasise the need for a persuasive case to be made out to use a video link to take evidence, particularly to impose it on an unwilling cross-examining party, rather than the reverse. At [78] his Honour said: Although the days are gone when witnesses are expected to feel any sense of intimidation as an aid to telling the truth, there is no doubt in my mind that the requirement to give evidence on oath or affirmation in the (generally) solemn atmosphere of a courtroom in the presence of a judge, and to answer questions in cross-examination in the presence also of cross-examining counsel, has at least three potential benefits. It enhances the prospect that the witness will remain conscious of the nature and solemnity of the occasion and of his or her obligations. It affords the cross-examiner some reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness and the cross-examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party. It provides the Court with a more satisfactory environment in which to assess the nature, quality and reliability of responses by a witness, both to questions and to the overall situation presented by the necessity to give evidence in court. To my mind there remains, even in the modern context, a certain "chemistry" in oral interchanges in a courtroom, whether between a judge and counsel (or other representative) or between cross-examiner and witness. I would not wish too lightly to deprive a cross-examiner of that traditional forensic element in the exchange although, as the cases universally make clear, the Court must now, if asked to do so, balance the interests of a cross-examining party against claimed inconvenience both in individual cases and with respect to individual witnesses. The Commissioner also relied to the same effect upon what was said in Blackrock Asset Management Australia Services Ltd v Waked (No 2) [2011] FCA 479, [46]; Stuke v ROST Capital Group Pty Ltd (2012) 207 FCR 87, [17]-[23], [31]-[32]; Kirby v Centro Properties Ltd (2012) 288 ALR 601, [24], [33]; Hua Wang Bank Berhad v Commissioner of Taxation (No 4) [2013] FCA 495, [17]-[19]; Australian Competition and Consumer Commission v Pirovic Enterprises Pty Ltd [2014] FCA 544, [77]-[78]; Re Dunn and Commissioner of Taxation [2012] AATA 486, [6]-[11]; Re Murray and Commissioner of Taxation [2011] AATA 837, [10]-[11] and Mulherin v Commissioner of Taxation [2013] FCAFC 115, [51]. Each of these cases emphasised the importance of allowing a party to cross-examine witnesses particularly when credit was in issue but none was authority for the proposition that the Tribunal could not take evidence from a party by video link even where credit was in issue nor that the observation of a "need for a persuasive case" was intended to impose a hurdle upon the exercise of the Tribunal's discretion which is not found in the words of s 35A of the Administrative Appeals Tribunal Act 1975 (Cth) ("the Tribunal Act"). 102 The course taken by the Tribunal in considering the application reveals that the Tribunal had some concerns about whether to grant the application. The application had been made by Mr and Mrs Seymour on 7 February 2014 but it was not heard until 24 September 2014 because, as the Tribunal said in paragraph [1] of the reasons, "it was premature to hear the application before all of the written evidence had been filed". In fact the Commissioner had not yet filed his statement of facts, issues and contentions by 24 September 2014 when the application was heard and on 6 November 2014 the Tribunal went on to make further directions for the filing by the Commissioner of any evidence upon which he sought to rely and for the taxpayers to file and serve any evidence in reply. However it is plain that the Tribunal was conscious of the need, from the outset, to consider with care the application by reference to the issues, evidence and material before the Tribunal. 103 The Tribunal heard the application on 24 September 2014 and received further submissions on 2 October 2014. On 27 October 2014 the Tribunal decided that: Leave to give oral evidence by video link at the hearing of these proceedings is granted to the Applicants. The decision was based upon the incomplete material available to the Tribunal at the time the application was considered, and was an evaluative judgment reached by the Tribunal by balancing the competing considerations to determine what the Tribunal considered to be fair and just to the parties in the context of the submissions which had been made. At [27] the Tribunal said: In balancing the competing considerations and determining what is fair and just to the parties, I have decided that Mr and Mrs [Seymour] should be given a reasonable opportunity to present their cases and that permitting them to give oral evidence by video link is an appropriate course. In that way, the Commissioner will also be afforded procedural fairness as he will have a reasonable opportunity to test the cogency of their written statements. Section 39 of the AAT Act requires the Tribunal to ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case. [Emphasis in original] The trial judge in the application for judicial review of the Tribunal's decision, however, considered this decision to reveal jurisdictional error resulting in the denial to the Commissioner of a reasonable opportunity to present his case by removing the opportunity for effective cross-examination. 104 His Honour's conclusion to that effect proceeded from a reading of the Tribunal's findings at [28] where the Tribunal had said: I have taken into account in reaching my decision that the only basis relied upon by Mr and Mrs [Seymour] for seeking to give their evidence by video link or overseas is because they fear, amongst the possible consequences of them coming to Australia, the Commissioner may issue them with DPOs prohibiting them from leaving Australia. This consideration is similar to that referred to by Flick J at [12] in Pirovic, namely, "an inability to freely travel to and depart from Australia". It is similar because Mr and Mrs [Seymour] fear that they will be in that situation. But their fears are, in my view, real and rational, for the reasons explained in their affidavits (see [14] and [16] above), as well as because the Commissioner did not proffer any undertaking not to issue DPOs. Their fear of being issued with DPOs is a very significant consideration for the exercise of the discretion because DPOs represent "a serious intrusion on a person's freedom of movement": Pattenden v Commissioner of Taxation [2008] FCA 1590, per Logan J. These fears are in my view well founded, unlike in Re Murray and Commissioner of Taxation [2011] AATA 837 where Deputy President Hack was not satisfied of Mr Murray's beliefs (see [12]-[17]). His Honour considered these findings to be that the application by Mr and Mrs Seymour had been "only" on the basis of a fear of receiving departure prohibition orders if they were to return to Australia to give evidence. His Honour said at [41]-[46] of his judgment: 41 With respect to the AAT, it does not seem to me to be correct to say (as the AAT did in [28]) that the only basis relied on was fear of DPOs. The statement is confused by the reference to that being "amongst the possible consequences" but it seems to me that, read with appropriate consideration and tolerance for any infelicity of language, what the AAT was identifying was a single point of resistance from the taxpayers, coupled with an inflexible position by the Commissioner. The reasoning of the AAT may, therefore, have proceeded upon an unstated assumption that an undertaking not to issue DPOs would have been met with willingness to travel to Australia. 42 In my respectful view, there was no adequate basis for such an assumption, if it was made. If it was not made, the consequence must be that the AAT failed to deal with the real reasons (or a large part of the real reasons) why the taxpayers had announced that they would not travel to Australia. 43 Mr Hyde Page, in his oral submissions on the present application, accepted that there was no reason to think that, if the Commissioner had given an assurance not to issue DPOs, the taxpayers would have agreed to come to Australia to give evidence. He submitted that the effect of the AAT's reasoning was that it was better to have the taxpayers' evidence by video link than to have no oral evidence from them at all. He referred in particular to [31]. 44 I am not able to read the AAT's reasons that way. In my view, the effect of the AAT's reasoning was that, in refusing to come to Australia to give oral evidence, the taxpayers were justified by a well-founded fear of being prevented from leaving Australia, to which the Commissioner had contributed. Taking the evidence by video link was justified and appropriate because, otherwise, the taxpayers would be "deprived" of an opportunity of giving oral evidence. 45 I shall deal with this reasoning in due course. 46 However, this is not just a case about error, or even legal error. The Commissioner must show that there has been a jurisdictional error, bearing in mind the discretionary and interlocutory character of the decision which is challenged. [Emphasis in original] At [72] his Honour stated his conclusions that the Tribunal had fallen into jurisdictional error in two particular and interrelated respects. The first was a finding by his Honour that the Tribunal had erred in taking into account the refusal of Mr and Mrs Seymour to come to Australia if they did not receive an assurance that a departure prohibition order would not be issued by the Commissioner. The second was that the Commissioner was not given a reasonable opportunity to present his case by removing the opportunity to him for effective cross-examination. 105 His Honour's conclusion that the Tribunal was not permitted to take into account the possibility that the taxpayers might be given a departure prohibition order was based upon the view that the position of the taxpayers was that they wished to remain beyond the reach of Australian authorities. At [73] his Honour said: First, in the circumstances of the present case, it was a jurisdictional error (i.e. an error of law which affected the exercise of power) for the AAT to take into account, or give any weight to, the refusal of the taxpayers to come to Australia if they did not receive an assurance that a DPO would not be issued by the Commissioner to prevent, or delay, them from leaving immediately. As will be seen, consideration of that issue will require some reference to the wider context. It is clear that the taxpayers would not have come to Australia even if such an assurance had been given. I am not to be taken as suggesting that consideration of the possibility that a DPO might be issued is necessarily, and in every case, an irrelevant matter. It all depends on the circumstances. But it was not relevant in the present case. The "wider context" to which his Honour referred in this paragraph was dealt with by his Honour at [91]-[100] where his Honour said: 91 It is now necessary to return to some fundamental issues about the approach which was taken by the AAT, concentrating particularly upon the notions of legal relevance and procedural fairness. I raised the matters hereunder squarely with the parties at the hearing. 92 The essence of the taxpayers' position was that they should be allowed, when they gave evidence in support of their cases in the AAT, to remain beyond the reach of Australian authorities, and free from any possibility of criminal prosecution. That raises some difficult questions about the approach taken by the AAT. 93 For example, had it been apparent that a refusal to return to Australia was based on a desire to avoid arrest on an outstanding warrant for some crime of violence, it is unthinkable that the AAT would regard it as appropriate to assist in that endeavour or to give it any weight. No different position could be taken in relation to a "white collar crime". Nor, in my view, could a taxpayer be assisted to avoid arrest for a criminal offence arising out of alleged participation in a tax fraud. I do not see that it could make a difference that an arrest was merely a real possibility which a taxpayer wished to avoid. 94 At [28], the AAT referred to some discussion of a similar question by Deputy President Hack in Re Murray and Commissioner of Taxation [2011] AATA 837 at [12]-[17], although it did so to distinguish the circumstances of the present taxpayers from that of "Mr Murray". The AAT's reference to Deputy President Hack's remarks, however, appeared to ignore an important observation at [12], in these terms: 12. Mr Murray's case is founded entirely on his claimed fear that the executive branch of the government might take lawful action to arrest him or to prevent him from departing the country as and when he chose to do so. I have considerable doubt whether that fear may properly be regarded as a relevant consideration however I do not propose to decide that question. I will assume, favourably to Mr Murray, that his fear may be taken into account. Having done so, I remain unpersuaded that it is appropriate to exercise the discretion favourably to Mr Murray. (Emphasis added.) 95 It is important to note that Deputy President Hack was prepared to assume that a fear of arrest or detention might be taken into account because, even on that assumption, there was no justification for taking Mr Murray's evidence by video link. Equally important, however, was Deputy President Hack's reservation about the relevance of that matter. He did not have to resolve that question. In my respectful opinion, in the present case the AAT could not avoid it. 96 The reasoning of the AAT turned decisively on its finding that the taxpayers' fears of detainment were well-founded, even though it accepted that no decision had been made to detain them. In my view, that conclusion emphasised, rather than diminished, the need to examine whether the possibility of detainment, or arrest, was a relevant factor to take into account in the present case. 97 The Commissioner may only act on a belief on reasonable grounds to issue a DPO. He may not deprive a person (an Australian citizen at least) of basic rights on mere speculation (Dalco v Federal Commissioner of Taxation (1987) 19 ATR 443). If the taxpayers have a well-founded fear (as the AAT found) that they might be (it must be assumed legitimately) prevented from leaving Australia, or perhaps even arrested, the question arises directly why that would be relevant in support of a request to give evidence by video link. 98 Of course, an apprehension of that kind might explain a refusal to come to Australia, as it did in the present case, but I cannot see that it would be a relevant matter contributing in any sense to a decision to permit evidence by video link, out of reach of Australian authorities, unless some particular additional personal factor was invoked, as appeared to be the case in Arnold. 99 Different considerations might arise if a party needed to obtain the evidence of an overseas witness who would not come to Australia - possibly. But where a party to proceedings in the AAT puts a request to give video evidence on the basis that the party wishes to avoid any possibility of legitimate action by taxation, regulatory or prosecuting authorities in Australia, I do not see how such a matter (which remains the declared position of the taxpayers regardless of the position of the Commissioner about DPOs) could normally be relied upon as relevant, much less decisive, by the AAT. 100 So far as the particular possibility of a DPO is concerned, there is another factor which is relevant. If the taxpayers came to Australia, and if a DPO was issued, there is a right of review in a court, including this Court. If on such a review a DPO was not lifted it can scarcely be suggested that it was not legitimate or permissible. The effect of the approach taken by the AAT was to pre-empt any possibility of a DPO, regardless of whether justified or not. As can be seen from these passages, especially that in [99], the reason his Honour concluded that the Tribunal had taken into account an impermissible matter was his Honour's conclusion that the Tribunal had been asked by Mr and Mrs Seymour to receive their evidence by video link because they wished to avoid any possibility of legitimate action being taken by taxation, regulatory or prosecuting authorities in Australia. At [92] his Honour described the essence of the position of Mr and Mrs Seymour as being that they should be allowed, when giving evidence, to remain beyond the reach of Australian authorities and free from any possibility of criminal prosecution. At [93] his Honour expressed the view that the Tribunal could not assist a taxpayer to avoid a real possibility of arrest for a criminal offence arising out of alleged participation in a tax fraud. 106 The Tribunal had taken into account the risk of receiving a departure prohibition order in considering the unwillingness of Mr and Mrs Seymour to travel to Australia because the Tribunal had wished "to test the preparedness of [Mr and Mrs Seymour] to attend and give evidence in person and also to understand whether their fears about being detained had any foundation". Mr and Mrs Seymour had claimed that they were unwilling to give evidence in Australia and had given as one of their reasons for that unwillingness that they did not wish to be exposed to the risk of receiving a departure prohibition order which might prevent them from leaving Australia after giving evidence. In those circumstances it was relevant for the Tribunal to take into account both the fact that they were unwilling to return to Australia to give evidence and also the reason for that fact. Wishing to avoid the possibility of legitimate action by taxation, regulatory or prosecuting authorities in Australia is a relevant consideration for the Tribunal albeit that it may not always result in a favourable outcome for those wishing to avoid the possibility of legitimate action. 107 The House of Lords in Polanski v Condé Nast Publications Ltd [2005] 1 All ER 945 held that, in general, in respect of proceedings which are properly brought in a domestic court, a claimant's unwillingness to be present in court because he was "a fugitive from justice" was a valid reason, and could be a sufficient reason, for making a video conference order. At [25]-[34] Lord Nicholls said: 25 Second, a fugitive from justice is not as such precluded from enforcing his rights through the courts of this country. This is so whether the fugitive is claimant or defendant. Mr Polanski's status as a fugitive offender does not deprive him of any rights he would otherwise possess in respect of the subject matter of this action. His flight from California in 1978, and the steps he has taken ever since to remain beyond the reach of the Californian court, do not preclude him from bringing proceedings in England in respect of damage to his reputation flowing from publication of defamatory material in this country. 26 At first sight this may seem unattractive. It may seem unattractive that a person can, at one and the same time, evade justice in respect of his criminal conduct and yet seek the assistance of the courts in protection of his own civil rights. But the contrary approach, adopted in the name of the public interest, would lead to wholly unacceptable results in practice. It would mean that for so long as a fugitive remained "on the run" from the criminal law, his property and other rights could be breached with impunity. That could not be right. Such harshness has no place in our law. Mr Polanski is not a present-day outlaw. Our law knows no principle of fugitive disentitlement. 27 Thirdly, a direction that a fugitive such as Mr Polanski may give his evidence by use of VCF [video conferencing facility] is a departure from the normal way a claimant gives evidence in this type of case. But the extent of this departure from the normal should not be exaggerated. It is expressly sanctioned by the Civil Procedure Rules. The power conferred by the rules is intended to be exercised whenever justice so requires. Seeking a VCF order is not seeking an "indulgence". 28 Fourthly, in the situation under consideration a VCF order will not assist the fugitive's evasion of justice. Whether a VCF order is made or not, the fugitive will not come to this country. He will not put himself at risk of arrest. In the present case, come what may, Mr Polanski's long-standing evasion of justice will continue. It will be unaffected by the court's decision on whether to make or refuse a VCF order. The effect of making a VCF order will be different. In the present case the effect will be to relieve Mr Polanski from one of the disadvantages of his fugitive status, namely, that he cannot travel freely to a country which has a relevant extradition treaty with the United States. To that extent a VCF order will enable Mr Polanski to sidestep one of the adverse consequences of his own criminal conduct and flight from justice. A VCF order will enable him to present his evidence orally to an English court in proceedings properly brought by him here, without being physically present in the court room. 29 Thus the practical consequences of the alternative answers on this issue are that if a court makes a VCF order, the fugitive will be relieved of a disadvantage otherwise attendant upon his fugitive status; but if the court refuses to make a VCF order, the fugitive's oral evidence will not be available at the trial. By adopting the latter course the court will in effect be saying be saying to the fugitive: "unless you surrender your fugitive status you cannot pursue (or, as the case may be, defend) your civil proceedings." 30 I understand the intuitive dislike of relieving a fugitive of a disadvantage which until recently was inherent in his self-created status. Until recently the fugitive had to make up his mind whether (a) to surrender his fugitive status and give his oral evidence in court or (b) to maintain his flight from justice and suffer whatever disadvantages this might have in civil proceedings to which he was a party as claimant or defendant. 31 I understand that. But overall the matter which weighs most with me is this. Despite his fugitive status, a fugitive from justice is entitled to invoke the assistance of the court and its procedures in protection of his civil rights. He can bring or defend proceedings even though he is, and remains, a fugitive. If the administration of justice is not brought into disrepute by a fugitive's ability to have recourse to the court to protect his civil rights even though he is and remains a fugitive, it is difficult to see why the administration of justice should be regarded as brought into disrepute by permitting the fugitive to have recourse to one of the court's current procedures which will enable him in a particular case to pursue his proceedings while remaining a fugitive. To regard the one as acceptable and the other as not smacks of inconsistency. If a fugitive is entitled to bring his proceedings in this country there can be little rhyme or reason in withholding from him a procedural facility flowing from a modern technological development which is now readily available to all litigants. For obvious reasons, it is not a facility claimants normally seek to use, but it is available to them. To withhold this facility from a fugitive would be to penalise him because of his status. 32 That would lack coherence. It would be to give with one hand and take away with the other: a fugitive may bring proceedings here, but his position as a fugitive will tell against him when the court is exercising its discretionary powers. It would also be arbitrary in its practical effect today. A fugitive may bring proceedings here but not if it should chance that his own oral evidence is needed. Then, despite the current availability of VCF, he cannot use that facility and a civil wrong suffered by him will pass unremedied. 33 For this reason I consider the judge was entitled and, indeed, right to exercise his discretion as he did. Rowland v Bock [2002] 4 All ER 370 was correctly decided. There Newman J made a VCF order in respect of a claimant who risked arrest and extradition to the USA on charges of fraud. No doubt special cases may arise. But the general rule should be that in respect of proceedings properly brought in this country, a claimant's unwillingness to come to this country because he is a fugitive from justice is a valid reason, and can be a sufficient reason, for making a VCF order. I respectfully consider the Court of Appeal fell into error by having insufficient regard to Mr Polanski's right to bring these proceedings in this country even though he is and will continue to be a fugitive from justice. 34 I would allow this appeal and restore the judge's order. Mr Polanski was convicted of a serious crime. His reluctance to return to this country is grounded in a fear that he may be extradited and receive a custodial sentence in California. That does not take the case out of the general rule. However, at the trial the jury will be told these facts and will take them into account on all issues to which they are relevant. This decision was approved by the High Court of New Zealand in Erceg v Erceg [2014] NZHC 2601 where Venning J observed at [22]: As Lord Nicholls recognised [in Polanski], at first sight the proposition may seem unattractive that a person can, at one and the same time, evade justice in respect of criminal conduct yet seek the assistance of the Court in protection of their own civil rights. At [23] Venning J said: As Lord Hope put it, the effect of refusing the order would not be to assist the normal processes of the law. Its effect would be to deny the plaintiff's right to access to justice. There is no reason to adopt a different approach in relation to the Tribunal considering the exercise of its power to receive evidence by video link under s 35A of the Tribunal Act. Each case must, of course, be decided on its own facts, and in some cases a wish to avoid action by regulatory authorities may militate against an application by the fugitive to pursue a case by giving evidence by video rather than by attendance in person, but permitting the giving of evidence by video in general furthers the proper administration of justice. There is nothing in the Tribunal Act which requires a rule to the contrary. 108 The correct approach for the Tribunal was the one which was adopted given the way the matter was conducted by the parties. An application had been made requiring the Tribunal to exercise its discretion upon the material and submissions advanced by the parties. The question of whether to allow the applicants in Part IVC proceedings to give evidence by video link required a consideration of what would best facilitate the determination of the proceedings by the Tribunal in the discharge by the Tribunal of its statutory function to consider and determine an application to review an objection decision made under Part IVC of the Administration Act. The Tribunal formed the view that the receipt of the evidence of Mr and Mrs Seymour by video link would facilitate its determination of the proceedings as "preferable to the pre-prepared written material". The Tribunal took into account a number of factors in reaching that conclusion which were open and appropriate for it to take into account. It took into account the fact that Mr and Mrs Seymour "should be given a reasonable opportunity to present their cases" whilst affording procedural fairness to the Commissioner in having a reasonable opportunity to test the cogency of the written statements. The Tribunal was mindful both of the requirement in the Tribunal Act that it ensure that every party to a proceeding before the Tribunal was given a reasonable opportunity to present his or her case and also that Mr and Mrs Seymour bore the burden of proving that the assessments were excessive. The barrister for Mr and Mrs Seymour had submitted to the Tribunal that their evidence was important, that their credit may be put in issue, but that it was "unlikely that their evidence will necessarily be determinative" because the proceedings were likely "to be about the legal efficacy of the arrangements under the provisions of the taxation laws in part due to the role apparently played by Vanda Gould as the former accountant". It will be necessary to return to these considerations below but for present purposes it is sufficient to note that the Tribunal formed the view that credit issues were not likely to be significant in light of the case put by the taxpayers. The Tribunal, in the context of its evaluation that credit was unlikely to be determinative in this case, was also concerned to ensure that it would not lightly deny Mr and Mrs Seymour the opportunity of giving oral evidence in circumstances where they had the evidentiary burden which they needed to discharge. It may also be relevant to mention that, as senior counsel for Mr and Mrs Seymour correctly conceded, the decision by the Tribunal to receive evidence via video link was able to be varied or set aside by the Tribunal in light of subsequent developments. In that regard it is not insignificant that the Tribunal now has, but did not then have, the statement of facts, issues and contentions subsequently filed on behalf of the Commissioner and the evidence the Commissioner proposes to lead. It is inappropriate, and unnecessary, to speculate whether or not the Tribunal would reach the same decision with that material but it is not irrelevant that the Tribunal had made a procedural decision about how it thought it could best decide a case which was able to be varied or revoked if required. 109 The second consequence his Honour considered flowed from the jurisdictional error of having taken into account an irrelevant consideration was that the Tribunal "denied to the Commissioner a reasonable opportunity to present his case by removing the opportunity for effective cross-examination". His Honour dealt with this at [81] saying: I see no objective basis at all for a conclusion by the AAT that cross-examination by the Commissioner would not be impeded. It was inevitable that the Commissioner's ability to cross-examine (about matters in issue, credit and more generally) would be impeded, perhaps seriously. That is one of the things which it was necessary to assess. I accept the Commissioner's submission that this was a necessary matter to take into account. I shall return to it also. At [87] his Honour said: The AAT did not discuss the whole or actual basis upon which the taxpayers declared their positions. Rather, the AAT focussed attention on the Commissioner's refusal to give an undertaking about one aspect of their position. The limited consideration of the declared bases of the taxpayers' refusal to travel to Australia has had the result that the taxpayers have been relieved of the consequences of their declared choices and the Commissioner has been confined to a limited, remote, non-compellable cross-examination of a party to the proceedings. At [102] his Honour said: The consequence of the AAT's reasoning upon the rights of the Commissioner to cross-examine was, in my view, profound. The AAT could not expect to exert more than the most basic procedural influence over the conduct of a party giving evidence from Mauritius. The possibility of effective cross-examination on documents, for example, must be regarded as effectively illusory. The ability to cross-examine on credit would be no more effective. Although there can be no suggestion that jurisdictional error is fairly or safely to be deduced only from a preference for a different procedural course, in my view, the restraint upon the ability of the Commissioner to answer the taxpayers' case, and present his own, was so fundamentally affected that the Commissioner was denied procedural fairness. At [111] his Honour said: Additionally, and in any event, any conclusion that the Commissioner's position was forensically unaffected by the decision to allow the taxpayers to give effectively non-compellable, unsupervised, evidence from Mauritius at their ongoing discretion was unsustainable. That would, in the circumstances of the present case at least, deny the Commissioner any fair opportunity of cross-examination on matters potentially critical to an assessment of the taxpayers' cases. In my view, that was a denial of procedural fairness and a breach of s 39(1) of the AAT Act. It went well beyond a legitimate exercise of discretion in the taxpayers' favour. As in Hayes, the prejudice would be incurable. His Honour's conclusion that the decision by the Tribunal "was a denial of procedural fairness" was not a conclusion which was open to his Honour on the material before the Tribunal. There was no material before his Honour about the live issues in the Tribunal proceedings. The Commissioner's case at the Tribunal was not, although perhaps should have been, that it was premature for the Tribunal to make a decision about whether to allow the taxpayers to give evidence by video link but that the taxpayers had to make out "a persuasive case" that they should be permitted to do so. His Honour, however, was not in a better position than the Tribunal to evaluate whether the decision to receive evidence by video link would deny the Commissioner an effective ability for cross-examination or would otherwise deprive the Commissioner of procedural fairness. His Honour did not have the Commissioner's statement of facts, issues and contentions, nor the evidence relied upon by the Commissioner nor an analysis of the issues and questions which might reasonably arise and how the exploration of those questions other than by the direct personal presence of Mr and Mrs Seymour might prejudice the Commissioner's case. The only material before his Honour about the evidence to be given in the Tribunal proceedings were the names of 14 persons giving evidence and a three page index of the evidence filed by Mr and Mrs Seymour in the proceedings. There was no material or analysis before his Honour about how the issues of credit might arise in connection with Mr and Mrs Seymour or about how cross-examination would be impeded if they were not physically present in Australia. 110 The decision made by the Tribunal to permit evidence by video link may not be the paradigm for a system of justice steeped in the common law tradition. There is, however, no rule of law or of practice that a party is entitled to insist on the physical presence of another party for cross-examination. The sufficiency of procedural fairness depends on the facts and circumstances of each individual case: Kingham v Cole (2002) 118 FCR 289, [26]; Commissioner of Taxation v Grbich (1993) 31 ALD 97, 101-2 [25] and [30]. The Tribunal was mindful of the limitations of evidence received by video link as well as the requirement in s 33(1)(c) of the Tribunal Act that it is "not bound by the rules of evidence". It considered the material and the submissions which had been filed and determined that the taking of oral evidence "albeit by video link, [would] be preferable to the pre-prepared written material on its own" as there is spontaneity. That conclusion was reached in the context of the Tribunal's evaluation of the issues and materials from which the Tribunal concluded that the evidence of Mr and Mrs Seymour was unlikely to be determinative notwithstanding that their credit may be in issue. The Tribunal specifically considered that cross-examination by the Commissioner of Mr and Mrs Seymour would not be impeded if they gave evidence by video link. That was a conclusion that was open to the Tribunal. 111 The Commissioner sought leave at the end of the appeal to file a notice of contention out of time. The application was opposed by counsel for Mr and Mrs Seymour and the parties were given leave to file written submissions. They were subsequently informed that leave was refused to the Commissioner to rely upon the notice of contention and that reasons would be given with the reasons for final judgment. 112 The proposed notice of contention sought by the Commissioner was in the following terms: 1. The primary judge should have found that the Tribunal erred in law by misapplying s 35A of the Administrative Appeals Tribunal Act 1975 (AAT Act): 1.1 by not requiring the applicants, in accordance with established authority, to make out a persuasive case for the use of video link evidence in circumstances where that course was opposed by the Commissioner; 1.2 by erroneously imposing an onus on the Commissioner to satisfy the Tribunal as to why the Appellants should not have been given leave to give their evidence by video link; and 1.3 by treating the issue as a contest between the applicants giving their evidence by video link or being permitted to give evidence by way of "pre-prepared written material" (reasons at [31]) in circumstances where the starting point is viva voce evidence unless the applicants make out a persuasive case to the contrary and where the Commissioner would have resisted the admission of evidence in the absence of the possibility of cross examination. 2. The primary judge should have found that there was no evidence for the Tribunal's findings (at reasons [32]): 2.1 that the Commissioner's cross-examination of the Appellants would not be impeded by their giving evidence by video link; and 2.2 That while the credit of the Applicants was conceded to be in issue, and the Applicants were "important" (witnesses), their evidence would not be determinative. 3. The Primary Judge should have found that the Tribunal breached its obligations under s 43(2B) by failing to refer to the evidence or other material upon which it based its findings (reasons [32]): 3.1 that the Commissioner's cross-examination of the Appellants would not be impeded by their giving evidence by video link; and 3.2 That while the credit of the Applicants was conceded to be in issue, and the Applicants were "important" (witnesses), their evidence would not be determinative. The grant of leave to the Commissioner would have required further argument leading to further delay in the disposition of the appeal. The Commissioner's application was three months out of time and was made without explanation for that delay: see Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6, [763]; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 215 [103]. The absence of a satisfactory explanation for the delay and the additional delay that the grant of leave would occasion militate against the grant of leave in this case. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.

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