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[2016] FCAFC 18
Federal Court of Australia (Full Court)
2016-03-02
Mr J, Griffiths J, Pagone J, Siopis J
Original judgment source is linked above.
SIOPIS, griffiths and pagone jJ DATE OF ORDER: 2 March 2016
SIOPIS J: 1 I have had the considerable advantage of reading the reasons of Griffiths J and Pagone J and, therefore, it is unnecessary for me to set out the background to this appeal. 2 The appellants, Mr John Seymour and his wife, Ms Jeanette Seymour, and the respondent, the Commissioner of Taxation (the Commissioner), are parties to proceedings in the Administrative Appeals Tribunal (the Tribunal) whereby the appellants challenge the decision of the Commissioner to disallow objections to tax assessments in excess of $7 million. I will refer to the proceedings in the Tribunal as the tax appeals. The appellants are resident in Mauritius, and left Australia shortly after the Commissioner commenced an audit of their tax affairs. 3 On 27 October 2014, the Tribunal gave leave to the appellants to give evidence in the tax appeals by video link from a place outside of Australia. The Commissioner applied for judicial review of the interlocutory decision of the Tribunal. 4 The primary judge granted relief in the nature of certiorari quashing the interlocutory decision of the Tribunal. The primary judge set aside the Tribunal's interlocutory decision on two main grounds. 5 First, the primary judge found that the Tribunal's interlocutory decision was attended by jurisdictional error because the Tribunal had taken into account irrelevant considerations. The second ground was that the Tribunal had failed to apply s 39 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and had denied the Commissioner procedural fairness. 6 On appeal, the appellants contend that the primary judge erred in making these findings. 7 I deal with the primary judge's findings of jurisdictional error on the basis of taking into account irrelevant considerations. 8 The primary judge found that the Tribunal had fallen into jurisdictional error by taking into account an irrelevant consideration in two separate instances. 9 The first instance was that the Tribunal impermissibly took into account the fact that the Commissioner had, when requested by the appellants to do so, failed to give an undertaking that, if the appellants came to Australia to give evidence, the Commissioner would not issue a departure prohibition order (DPO) under s 14S of the Taxation Administration Act 1953 (Cth). 10 The context in which the primary judge found that the Tribunal had fallen into jurisdictional error in this respect, was that the Tribunal had proceeded on the basis that the only obstacle to the appellants coming to Australia was the fact that the Commissioner had declined to give an undertaking not to issue a DPO, and that the appellants would have been prepared to come to Australia to give evidence had the Commissioner given such an undertaking; when the evidence before the Tribunal showed that the appellants were not prepared to return to Australia, even if the Commissioner had undertaken not to issue a DPO. 11 In my respectful view, the Tribunal did not proceed on the mistaken assumption referred to by the primary judge. In my view, a reading of the Tribunal's reasons as a whole, shows that the Tribunal proceeded on the basis that the appellants' case was that they wanted to give their evidence from abroad because they feared that, if they came to Australia, they would not be allowed to leave, either because they would be arrested or because the Commissioner would issue them with a DPO, and that they would only return to Australia if a number of undertakings were given by the Commissioner to the Tribunal, only one of which was that the Commissioner not issue a DPO. (See, [15] and [16] of the Tribunal's reasons.) 12 The Tribunal referred to the evidence of the appellants, and was aware of the far ranging scope of the conditions which the appellants had stipulated as being the basis upon which they would be prepared to return to Australia, which went well beyond simply an undertaking from the Commissioner not to issue a DPO. Indeed, at [20] of its reasons, the Tribunal referred to the additional conditions which the appellants' stipulated for returning to Australia as comprising a "sweeping range of other conditions...a number of which are patently outside of the tax administration powers of the Commissioner." 13 In my view, the Tribunal appreciated that, on the appellants' evidence, the Commissioner giving an undertaking not to issue a DPO would not be sufficient to secure their presence in Australia to give evidence. The Tribunal did take into account the fact that the Commissioner had declined to give an undertaking not to issue a DPO, but not in the context referred to by the primary judge. I will refer to the circumstances in which the Tribunal, quite properly, in my view, took into account the fact that the Commissioner declined to give an undertaking not to issue a DPO. Accordingly, in my respectful view, the primary judge has afforded the Tribunal's reasons for decision too narrow a reading. 14 In order for a Tribunal to fall into jurisdictional error the Tribunal must fail to take into account a mandatory relevant consideration or take into account a consideration which it is mandatorily precluded from taking into account. In giving the appellants leave to give evidence by video link from a place outside of Australia the Tribunal acted pursuant to a discretion conferred on the Tribunal under s 35A of the AAT Act. That statutory provision does not expressly identify either mandatory relevant or mandatory irrelevant considerations. Therefore, any mandatory considerations to which the Tribunal is required to have regard or not have regard, in order to act within jurisdiction, must be implied from a consideration of the "subject matter, scope and purpose" of the Act in question (Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40). 15 The circumstances of this aspect of the appeal do not call for the Court to identify more than one of the mandatory considerations which the statutory scheme impliedly requires the Tribunal to have regard - this is the reason or reasons for seeking an order to give evidence abroad by video link. On the other hand, there is in my view, nothing in the statutory scheme which dictates that the Tribunal is mandatorily precluded from taking into account whether or not the Commissioner has given an undertaking not to issue a DPO. 16 The Tribunal took into account the fact that the Commissioner had not given an assurance not to issue a DPO as evidence which "lends credence to the fears" of the appellants that they would be prevented from leaving Australia if they returned to give evidence. (See, [30] of the Tribunal's reasons.) In other words, in considering the appellants' reasons for wanting to give evidence by video link from abroad, the Tribunal took into account the fact that the Commissioner had declined to give an assurance not to issue a DPO as part of its fact finding process, namely, whether the appellants asserted fear of being prevented from leaving Australia if they were to return to give evidence, was justified. 17 In my view, it was open to the Tribunal to take this fact into account and that it did not fall into jurisdictional error in doing so. In my respectful view, the primary judge erred in finding that the Tribunal had in this respect fallen into jurisdictional error. 18 The primary judge, also, however, based his finding of jurisdictional error on a second basis. This is what I refer to as the public policy aspect of the case. At [97]-[98] of the reasons for decision, the primary judge observed: 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. 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. 19 Later at [99] of the reasons for decision, the primary judge observed as follows: [W]here 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 taken 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. 20 Also at [101], the primary judge observed: Arnold does not help to establish any different position to support the request in the present case. It appears from the terms of the judgment that an undertaking was offered. There is no support in the judgment for any proposition that declining to offer an undertaking would have resulted in permission to give evidence by video link for that reason. As I said earlier, different considerations might arise in the case of a non-compellable witness whose evidence was important to the case of a party, but parties themselves are in a different position. They cannot, in my view, expect assistance to avoid the operation of Australian law, at least where adequate recourse to the courts is available. 21 The appellants in this appeal challenge these findings by the primary judge and, in particular, they challenge the primary judge's observations quoted in the preceding paragraph. 22 I agree with the primary judge that the Tribunal fell into jurisdictional error in the approach that it adopted in relation to this public policy aspect of the case. 23 The primary judge characterised the Tribunal's error as taking into account an irrelevant consideration, in the sense that the AAT Act impliedly precluded the Tribunal from treating the desire of an overseas litigant to avoid the reach of the Australian authorities, as being a legitimate reason upon which to base the exercise of the discretion in s 35A in favour of permitting the litigant to give video evidence from abroad. I would, however, prefer to characterise the Tribunal's error slightly differently, namely, as the failure by the Tribunal to have regard to the public interest in the proper administration of the Taxation Administration Act 1953 (Cth), in particular, and to the administration of justice, in general. 24 It is, of course, in the public interest that a taxpayer who wishes to challenge a tax liability have a reasonable opportunity to present their case. Indeed, s 39(1) of the AAT Act specifically provides to that effect. 25 However, there is also a public interest in the Commissioner being able effectively to recover tax liabilities from taxpayers. One of the various means whereby the Parliament has reflected that public interest is by the enactment of s 14S of the Taxation Administration Act, which empowers the Commissioner to issue, in appropriate cases, a DPO. Section 14S provides as follows: 14S Departure prohibition orders (1) Where: (a) a person is subject to a tax liability; and (b) the Commissioner believes on reasonable grounds that it is desirable to do so for the purpose of ensuring that the person does not depart from Australia for a foreign country without: (i) wholly discharging the tax liability; or (ii) making arrangements satisfactory to the Commissioner for the tax liability to be wholly discharged; the Commissioner may, by order in accordance with the prescribed form, prohibit the departure of the person from Australia for a foreign country. 26 It is apparent, therefore, that a taxpayer who is present in Australia when he or she incurs a tax liability, and who falls within the category of taxpayers referred to in s 14S(1)(b) of the Taxation Administration Act, may not be able to depart from Australia, whilst he or she disputes that tax liability, unless he or she has paid his or her tax liability; or has made arrangements satisfactory to the Commissioner for the payment of that tax liability. 27 In this case, I infer that because the appellants fear that the Commissioner may issue a DPO if they return to Australia, that they have not made any arrangements satisfactory to the Commissioner for meeting their tax liability the subject of the tax appeals. 28 However, by leaving Australia once the Commissioner commenced an audit into their tax affairs, as the appellants did, the appellants have pre-empted the operation of s 14S of the Taxation Administration Act and have succeeded in leaving Australia without having made arrangements for the payments of their tax liability satisfactory to the Commissioner. In making their application to give evidence from abroad, the appellants seek to entrench their peremptory action, whilst still not making arrangements to the satisfaction of the Commissioner for the payment of their tax liability. 29 Whilst it is the case, as the appellants contend, that in making the impugned orders, the Tribunal did not "assist" the appellants to avoid the operation of Australian law - this was achieved by the appellants' own conduct in fleeing Australia; nevertheless, in my view, the making of orders permitting the appellants to give evidence from abroad has a tendency to undermine the operation of the Taxation Administration Act. 30 This is a consideration which, in my view, the Tribunal ought to have taken into account. In failing to take into account the effect of the orders on the administration of the Taxation Administration Act and the wider public interest, the Tribunal failed to have regard to a relevant consideration and fell into jurisdictional error. The Tribunal did not, therefore, consider whether leave should be refused on public policy grounds, or whether the competing elements of public interest comprising the appellants' right to challenge their tax liability, and the proper administration of the Taxation Administration Act, could be accommodated by fashioning any leave to give evidence from abroad in a manner which better reflected the competing interests. Thus, for example, in this latter respect, had the Tribunal directed its mind to this consideration, the Tribunal may have considered whether to impose, as a condition of the leave to adduce evidence by video link from abroad, that the appellants provide security within Australia for the payment of the tax liability. 31 In my view, therefore, the orders made by the Tribunal were affected by jurisdictional error and the primary judge did not err in quashing the orders. The appeal should, therefore, be dismissed. 32 It is unnecessary, therefore, to determine whether the primary judge erred in relation to his findings that the Commissioner was denied procedural fairness. However, had it been necessary to decide that issue, I would have dismissed that ground of appeal for the reasons given by Griffiths J. 33 The Commissioner's application for leave to file a notice of contention out of time was dismissed by the Court. I agree with Griffiths J as to the reasons for that decision and the orders proposed. 34 The primary judge recognised that the appellants may in the future make another application for evidence to be given from abroad by video link. In this regard, I make the following observation, albeit, somewhat tentatively because this was not the subject of argument by the parties. It appears to me, however, that there is at least one further matter which may well be relevant in considering applications for witnesses to give evidence in the Tribunal from abroad. That is the question of whether the perjury laws of Australia would apply to a witness who gives evidence in the Tribunal from abroad. On the basis of preliminary research, it appears that s 35 of the Crimes Act 1914 (Cth) may well apply extraterritorially in circumstances where a person gives evidence in a Tribunal proceeding from abroad. 35 The appeal is dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.
GRIFFITHS J: 36 I have had the benefit of reading in draft the reasons of Pagone J. I respectfully disagree with his Honour's view that the appeal should be allowed. For the reasons which follow I consider that the appellants have failed to establish any appealable error in the primary judge's reasons for judgment in upholding the application for judicial review made by the Commissioner of Taxation (Commissioner). I will also set out below my reasons for refusing an extension of time to permit the Commissioner to rely upon a proposed notice of contention. 37 In view of the detailed reasons of Pagone J it is unnecessary to restate in any great detail the background to the appeal or to repeat at any length his Honour's summary of the reasons of both: (1) the Administrative Appeals Tribunal (AAT) for acceding to the appellants' request that they be permitted to give evidence in the Part IVC proceedings in that tribunal by video link; and (2) the primary judge's reasons for upholding the Commissioner's judicial review challenge to the AAT's decision. 38 It is important at the outset, however, to emphasise that, in order to succeed in the appeal, the appellants need to establish that the primary judge fell into appealable error. That is because an appeal under s 24 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) is an appeal in the nature of a rehearing (see Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (Allesch) at [23] per Gaudron, McHugh, Gummow and Hayne JJ and CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 at [111] per Gaudron J). The appellants must establish an error in the judgment below, whether that error be one of law, fact or in the exercise of a discretionary power. It is insufficient of itself that the appeal court would have come to a different view on the substantive merits of the judicial review application. 39 The AAT's discretionary power under s 35A of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) is a broad one, as is reflected in its terms as in force at the time of the AAT's decision: 35A Participation by telephone etc. (1) A person holding a directions hearing and the Tribunal in the hearing of a proceeding may allow a person to participate by: (a) telephone; or (b) closed‑circuit television; or (c) any other means of communication. (2) This section does not apply to a proceeding in the Security Appeals Division to which section 39A applies. 40 A similarly broad discretion is conferred upon the Court in respect of the same subject matter under s 47A of the FCA Act, which is in the following terms: 47A Testimony by video link, audio link or other appropriate means (1) The Court or a Judge may, for the purposes of any proceeding, direct or allow testimony to be given by video link, audio link or other appropriate means. Note: See also section 47C. (2) The testimony must be given on oath or affirmation unless: (a) the person giving the testimony is in a foreign country; and (b) either: (i) the law in force in that country does not permit the person to give testimony on oath or affirmation for the purposes of the proceeding; or (ii) the law in force in that country would make it inconvenient for the person to give testimony on oath or affirmation for the purposes of the proceeding; and (c) the Court or the Judge is satisfied that it is appropriate for the testimony to be given otherwise than on oath or affirmation. (3) If the testimony is given: (a) otherwise than on oath or affirmation; and (b) in proceedings where there is not a jury; the Court or the Judge is to give the testimony such weight as the Court or the Judge thinks fit in the circumstances. Note: In proceedings where there is a jury, the Judge may warn the jury about the testimony (see section 165 of the Evidence Act 1995). (4) The power conferred on the Court or a Judge by subsection (1) may be exercised: (a) on the application of a party to the proceedings; or (b) on the Court's or Judge's own initiative. (5) This section applies whether the person giving testimony is in or outside Australia, but does not apply if the person giving testimony is in New Zealand. Note: See Part 6 of the Trans‑Tasman Proceedings Act 2010. 41 Self-evidently, neither provision contains an express list of considerations to be taken into account by the AAT or the Court respectively in considering whether or not to permit evidence to be given by video link. In Australian Competition and Consumer Commission v Pirovic Enterprises Pty Ltd [2014] FCA 544 (Pirovic) at [11], Flick J made the following observations with respect to the Court's discretion under s 47A of the FCA Act: The exercise of the discretion conferred by s 47A(1) must unquestionably be guided by the facts and circumstances of the individual case in which permission is sought to adduce evidence by way of video link. It would be unwise, if not impossible, to attempt any exhaustive list of considerations relevant to the exercise of discretion. Courts have, accordingly, resisted any temptation to attempt to do so: e.g., Australian Securities and Investments Commission v Rich [2004] NSWSC 467 at [20] to [39], (2004) 49 ACSR 578 at 583 and 587 per Austin J; Kirby v Centro Properties Ltd [2012] FCA 60 at [10], (2012) 288 ALR 601 at 604 to 605 per Gordon J. Subject to that necessary qualification, considerations which may assume relevance would include: • the extent to which the proposed witness seeks to give evidence of facts relevant to the dispute as opposed to opinions founded upon, or largely founded upon, agreed facts or assumptions; • whether the parties are in agreement as to the utility in allowing evidence to be given by way of video link; • whether the proposed evidence is centrally relevant to the issues to be resolved or more tangential to those matters of real dispute; • the extent to which any cross-examination may be inhibited by the absence of the witness being present; • the relevance of the evidence the subject of any cross-examination - the more limited the cross-examination and the more questionable the relevance of the evidence the more limited may be the prejudice to the cross-examiner; • the reasons proffered by the witness as to the inability to come to Australia; and • the practical impediments that a refusal to allow cross-examination to proceed by way of video link upon the ability of a party to present its case. Considerations in any particular case could also include: • factors peculiar to the proposed witness, including ill-health or an inability to freely travel to and depart from Australia; and • the extent to which the Court itself may consider that it would be assisted by evidence being given in person. The overriding consideration must, however, forever remain what is considered by the Court to be in the best interests in the administration of justice, including the need to ensure that justice is done as between the parties. 42 Those observations, with which I respectfully agree, are apposite to the AAT's discretion under s 35A of the AAT Act, with appropriate adjustments to reflect the AAT's different role and function and relevant statutory provisions, such as ss 33 and 39 of the AAT Act and s 47C of the FCA Act. 43 In [67] of his reasons for judgment, the primary judge (in referring to Flick J's observations in [11] of Pirovic), stated that "the matter of most central concern is the question of what is necessary to ensure fairness between the parties". 44 It is also to be noted that in [11] of Pirovic (which is set out in [6] above), Flick J emphasised the importance of the discretion under s 47A being guided by the facts and circumstances of the individual case in which the question of adducing evidence by way of video link arises. As will shortly be explained, that is consistent with the primary judge's approach here. 45 The primary judge stated at [72] of his Honour's reasons for judgment that he considered that, in determining to permit the appellants to give evidence in the AAT by way of video link, the AAT fell into jurisdictional error in two particular and interrelated respects. The first such error was that the AAT took into account or, alternatively, gave any weight to the appellants' refusal to come to Australia if the Commissioner did not give them an undertaking that he would not issue a departure prohibition order (DPO) against them if they were to return to this country for that purpose. His Honour regarded that consideration as not being relevant because it was apparent from correspondence which had passed between the appellants' solicitor and the Commissioner that the appellants would not return to Australia even if such an undertaking had been given. In other words, his Honour regarded the issue of DPOs as an irrelevant matter because of the appellants' own stated position. 46 The primary judge made clear that he was not suggesting that the possibility of a DPO being issued was always an irrelevant matter. So much is clear from [73] of his Honour's reasons for judgment which, for convenience, is set out in full (emphasis added): 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. 47 It may be interpolated at this point that, generally, the determination of whether or not a particular consideration is one which a decision-maker is either bound to take into account or, alternatively, to ignore, turns on a proper construction of the relevant legislation and not by reference to particular facts. In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (Yusuf) at [73] McHugh, Gummow and Hayne JJ stated (footnotes omitted): It is, of course, essential to begin by considering the statutory scheme as a whole. To that extent the submission is right. On analysis, however, the asserted duty to make findings may be simply another way of expressing the well-known duty to take account of all relevant considerations. The considerations that are, or are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider. In that regard it is important to recall, as Brennan J said in Attorney-General (NSW) v Quin: "The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v Madison: 'It is, emphatically, the province and duty of the judicial department to say what the law is.' The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." 48 It is important to note, however, that in Yusuf at [74] the plurality also acknowledged that considerations put forward by the parties can also influence what is or is not a relevant consideration: This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts. 49 Thus, a consideration which, on a proper construction of the relevant legislation, is one which the decision-maker might or should take into account may cease to be a relevant consideration if an aggrieved party makes clear to the decision-maker that he or she places no reliance upon that particular consideration and no other party takes a contrary view. 50 The primary judge concluded that this was the case here with respect to the issue of the possible making of DPOs against the appellants. In a letter dated 12 August 2014 which had been sent on the appellants' behalf by their then solicitors (the letter of demand), the Commissioner was asked, as an essential condition to the appellants possibly returning to Australia, to give a written undertaking (with multiple components) to the AAT, which was in the following terms: The Commissioner of Taxation undertakes that if Mr John Washington York Seymour and Jeanette Marie Louise Seymour physically travel to Australia for the purpose of giving evidence as witnesses in AAT proceedings (specifically AAT 2013/4168 - 4177, 2013/0287 - 0296, 2014/1853 - 1859) the Commissioner of Taxation (including his employees, officers, agents and ancillaries) will not take advantage of the presence of either witness by: I. Issuing a departure prohibition order to either witness, or otherwise preventing either witness from leaving Australia; II. Serving either witness with court or other process (except process that is properly incidental to AAT 2013/4168 - 4177, 2013/0287 - 0296, AAT 2014/1853 - 1859); III. Initiating or procuring criminal charges against either witness in connection with tax offences allegedly committed by either witness during the time either witness is in Australia; IV. Taking to steps to implement or procure the arrest or physical detention of either witness in connection with criminal charges or future criminal charges based on tax offences allegedly committed by either witness or involving either witness. The Commissioner of Taxation gives the Administrative Appeals Tribunal a further undertaking that he (including his employees, officers, agents and ancillaries) will not communicate with other Commonwealth or State government agencies, or to any country with which Australia has an extradition treaty or similar agreement, about the current AAT proceedings, and in particular the evidence to be given by the John Seymour and Jeanette Seymour, in a way that may have the effect of undermining the other undertakings given by the Commissioner of Taxation to the Administrative Appeals Tribunal. The Commissioner of Taxation gives the Administrative Appeals Tribunal a further undertaking that he will provide the Applicants with a sworn affidavit identifying the other government agencies that have been involved in any investigation of John Seymour and Jeanette Seymour, as well as the relevant persons at these agencies with an involvement in such investigations. The Commissioner of Taxation gives the Administrative Appeals Tribunal an undertaking that he (including his employees, officers, agents and ancillaries) will not communicate with other Commonwealth or State government agencies about the arrival of the Seymours in Australia. For the avoidance of doubt these undertakings continue to have force and effect until such time as John Seymour and Jeanette Seymour have completed their evidence in the AAT proceedings and completed the journey back to their country of residence. In the event that John Seymour and/or Jeanette Seymour has not departed Australia within one week (that is, seven full days) of completing their evidence in the AAT proceedings the Commissioner of Taxation may apply to the Administrative Appeals Tribunal to be released from these undertakings. 51 The appellants' position regarding their possible return to Australia to give evidence in the Pt IVC proceedings was confirmed by each of them in their respective affidavits dated 7 February 2014 which were filed in the AAT proceeding. Both those affidavits described the ATO's investigation since 2009 into their respective tax affairs. Each affidavit contained the following evidence (albeit in differently numbered paragraphs) which set out the appellants' individual refusals to return to Australia for the purpose of giving oral evidence in the AAT proceeding (emphasis added): My difficulties with the ATO have caused me to think that if I am physically present on Australian territory for any period of time I will either be arrested or prevented from leaving, possibly for many years. For this reason I am not prepared to come to Australia for the purpose of being cross-examined or giving oral evidence in these proceedings, or for any other reason. … For the reasons I outline above I am not prepared to physically come to Australia for any reason, unless at least one of several different conditions is satisfied. I would be prepared to come to Australia if the ATO substantially abandons its claims about the taxes and penalties I owe for the 2000-2010 income years, or if these liabilities are overturned by a court or tribunal. I would come to Australia if I was given a written assurance or agreement that I will not be prevented from leaving Australia by the government, or arrested for alleged tax crimes while in Australia. I would also need to receive independent legal advice that any such assurance or agreement is legally binding on all relevant government agencies and bodies. I would be prepared to come to Australia if I was given legal advice that it was not possible for me to be prosecuted for a crime that carries a possible custodial sentence. I do not personally have any expectation about what the impact on my AAT appeal would be, if I refused to come to Australia for the purposes of cross-examination. My view about remaining outside Australia is sufficiently strong that I would not come to Australia even if assured it was a certainty that my AAT appeal will be unsuccessful due to my absence. I do not believe that I have done anything wrong, or criminal, in connection with my tax matters or in any other respect. However I do not regard ultimate vindication by the courts or AAT as a sufficient reason to come to Australia if this means I could be submitting myself to a costly struggle, away from my home, that would potentially last for years. I do not want to expose myself to any possibility of a criminal offence charge at this late stage of life. 52 The primary judge summarised the significance of these matters in [26] of his reasons for judgment: The statement of the taxpayers' position which was before the AAT in those affidavits, therefore, amounted to an ultimatum that the taxpayers would not come to Australia, whatever the consequence for the proceedings they had initiated before the AAT, unless at least two stipulations were satisfied: a binding assurance of no restraint on departure and a binding assurance of no arrest. 53 It was not suggested in the appeal that this was an inaccurate summary of the appellants' position. 54 The primary judge viewed as significant that, even if the Commissioner had given the appellants an undertaking that he would not issue a DPO against them, the appellants would still not have returned if the other conditions set out in the letter of demand were unfulfilled, including the demand for a written assurance or agreement that they would not be arrested for alleged tax crimes while they were in Australia. The primary judge set out at [86]: Their position was, as disclosed by their affidavits, that unless assured that they would neither be prevented from leaving, nor subject to prosecution, they would not travel to Australia to be cross-examined. That was their declared choice. It took into account the possible consequence for their respective applications to the AAT. I see no basis upon which to assume that if the Commissioner had given an undertaking not to issue a DPO, the taxpayers would have come to Australia. They said they would not. 55 In my respectful view, the appellants have not established any appealable error in respect of the primary judge's reasons and finding that the AAT fell into jurisdictional error in taking into account in the particular circumstances of this case the appellants' refusal to come to Australia if they did not receive an assurance from the Commissioner that they would not be issued with a DPO. The appellants' own stated and clear position was that they would not return to Australia in any event unless additional conditions were also met to address their concerns that they would be arrested and detained in Australia for tax offences. 56 The issue concerning the DPOs was irrelevant in the particular circumstances of this case having regard to the way in which the appellants had advanced their case. The primary judge made this clear in [73] of his reasons for judgment and the emphasis he placed on the particular circumstances of the matter. His Honour also made clear in that paragraph that he was not suggesting that consideration of the possibility that a DPO might be issued was an irrelevant consideration in every case. As his Honour stated, it "all depends on the circumstances". But it was not a relevant consideration here because of the appellants' own stated position. 57 Later in his reasons for judgment, the primary judge returned to what he described as a "fundamental issue" concerning the AAT's approach relating to the notion of "legal relevance". In [92] his Honour described the "essence" of the appellants' position as being that they should be able to give evidence in support of their cases in the AAT but remain beyond the reach of Australian authorities, including the possibility of criminal prosecution. In [96], the primary judge stated that the AAT was obliged "to examine whether the possibility of detainment, or arrest, was a relevant factor to take into account in the present case" (emphasis added). 58 After noting that the AAT had found that the taxpayers had a well-founded fear that they might be detained or arrested, his Honour then focused on whether that was relevant to the appellants' application under s 35A of the AAT Act. After noting at [98] that such an apprehension might explain a witness' refusal to come to Australia, his Honour said that he could not see how that: …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. (Emphasis added.) 59 I do not view this paragraph as indicating that the primary judge was stating that a witness's refusal to return to Australia because of a reasonably-based apprehension that the witness may be detained (for example, by a DPO) or arrested is always an irrelevant consideration. The text of [98] is inconsistent with that characterisation, as indeed is the text in [73] of his Honour's reasons for judgment (which is set out in [11] above). 60 Rather, the primary judge considered that the appellants had not demonstrated any "personal factor" which brought their case within Commissioner of Taxation v Arnold [2014] FCA 959 (Arnold). It is appropriate to say something more about that case. In Arnold, the Commissioner had commenced proceedings against Mr Arnold and others and alleged that they had engaged in conduct involving the promotion of a tax exploitation scheme in contravention of relevant provisions of the Taxation Administration Act 1953 (Cth). Mr Arnold made an application under s 47A of the FCA Act to have his evidence taken by video link from Canada, where Mr Arnold lived and his tourist and hospitality business was located. He filed an affidavit in support of his application in which he said that he could not physically attend or come to Australia. Mr Arnold gave a detailed explanation to the effect that his business was unique and that there was no other person with appropriate expertise to cover for him if he were away from the business for any period. He explained that his business operated every day of the year and that he was the main employee. He also explained that he had various dependants, including a 2 year old daughter and elderly parents. He deposed that his business would stop if he was not present to run it on a daily basis and that he could not afford to hire anybody else but that, in any event, there was no one else who had "the subset of skills or knowledge to operate such a business because this business is the only one of its kind on the planet". 61 In Arnold, the Commissioner did proffer an undertaking not to issue a DPO if Mr Arnold came to Australia to give evidence. The Commissioner opposed Mr Arnold's application to give his evidence by video link and said that his cross-examination of Mr Arnold would be inhibited if it had to take place on that medium, particularly where Mr Arnold's credit was in issue. 62 After referring to Pirovic and Buchanan J's decision in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; (2009) 181 FCR 152 (Campaign Master) and the various considerations which may assume relevance in an application to give evidence by video link, Edmonds J stated at [19] in Arnold that the relevant matters and the particular circumstances there pointed strongly in favour of requiring Mr Arnold to be physically present to give his evidence and to be cross-examined. His Honour then identified one matter which he said caused him some concern about refusing Mr Arnold's application, which is reflected in [21] of his reasons for judgment: The only matter which causes me some concern is the possibility that if Mr Arnold was to come to Australia for the hearing, he might be restrained from leaving to return to Canada after the hearing on account of Australian tax liabilities he presently has. My concern in this regard has been alleviated by the Commissioner proffering an undertaking in the following terms: Having had regard to Mr Arnold's individual circumstances as a person owing tax-liabilities, within the meaning of s 255-1 of Schedule 1 of the TAA, if Mr Arnold comes to Australia to give evidence in this proceeding the Commissioner undertakes not to issue a departure prohibition order, within the meaning of s 14S of the TAA, in respect of Mr Arnold or to seek some other similar form of restraint against Mr Arnold, upon the conclusion of Mr Arnold giving evidence in this proceeding. 63 Justice Edmonds concluded that, in the light of the Commissioner's undertaking, and for the reasons previously stated, Mr Arnold's application to give evidence by video link should be refused. 64 It might be observed that Edmonds J's observations regarding the relevance of the Commissioner's undertaking were strictly obiter. Moreover, as the primary judge in the appeal also noted at [101], nothing in Edmonds J's decision indicated that if there had not been such an undertaking, Edmonds J would have granted Mr Arnold's application to give evidence by video link for that reason. In any event, however, it is evident that the primary judge did not consider Arnold to be wrong; rather he considered that Arnold turned very much on Mr Arnold's individual circumstances, which placed him in a different position from the Seymours. I see no appealable error in that approach. Indeed, I respectfully agree with it. 65 I respectfully disagree with Pagone J's view that the approach taken by the majority of the House of Lords in Polanski v Condé Nast Publication Ltd [2005] UKHL 10; [2005] 1 All ER 945 (Polanski) should be preferred to that of the primary judge. Pagone J draws attention to some key paragraphs in Polanski in the leading speech of Lord Nicholls (with whom Lord Hope and Baroness Hale agreed). Mr Polanski had pleaded guilty in California to a charge of having had sexual intercourse with a 13 year old girl but he fled to France before he could be sentenced. Subsequently, while still living in France, he commenced defamation proceedings in England. Mr Polanski applied under CPR 32.3 (which provided that the court "may allow a witness to give evidence through a video link or by other means") to have his evidence taken by video link from France (noting that there was an extradition treaty between the United Kingdom and the United States of America). The application was successful at first instance but that decision was reversed by the Court of Appeal. On appeal to the House of Lords, the majority view in Polanski as expressed by Lord Nicholls at [33] of his speech was that, while acknowledging that special cases might arise …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. (Emphasis added.) 66 Critical to that reasoning was the proposition that even a fugitive from justice is entitled to invoke the courts' jurisdiction to protect legal rights. If the administration of justice is not brought into disrepute by that entitlement the majority reasoned that it was difficult to see why the administration of justice is brought into disrepute by permitting a fugitive to take advantage of procedural facilities which are readily available to all litigants, including video conferencing. 67 As Pagone J notes, Polanski was approved and applied by Venning J in the High Court of New Zealand in Erceg v Erceg [2014] NZHC 2601 (Erceg). Justice Pagone considers that there is no reason to adopt "a different rule" in relation to the AAT when it considers the exercise of its power to take evidence by video link under s 35A. Justice Pagone adds that each case must turn on its own facts and that in some cases the wish to avoid legitimate action by regulatory authorities may militate against a fugitive being permitted to give evidence by video link. His Honour effectively favours "a general rule" that, absent a special case, under the discretion of a provision such as s 35A of the AAT Act (and, presumably, s 47A of the FCA Act), a witness's reluctance to come to Australia to give evidence because of a reasonably based fear of arrest or otherwise being prevented from leaving the country after giving that evidence is a relevant matter to be taken into account in determining whether or not to permit the person to give evidence by video link from outside the jurisdiction. Moreover, Pagone J considers that, consistently with Polanski, that may be a sufficient reason in itself for granting that permission. 68 With great respect to Pagone J, I disagree for the following reasons. 69 First, whilst mindful of the considerable respect which the Court should accord to a decision of the House of Lords (even though it is not binding) I think it best to avoid the language of there being a "rule" or a "general rule" in the exercise of the broad discretion of the AAT under s 35A of the AAT Act (the same can be said in respect of s 47C of the FCA Act). In my view, the notion of a "rule" or a "general rule" carries with it a risk that a decision-maker will approach his or her task too rigidly, rather than give proper effect to the breadth of the discretion, as was correctly highlighted in Pirovic. 70 Secondly, it is notable that the House of Lords divided 3 to 2 in Polanski. There was a strong dissent by Lord Slynn (with whom Lord Carswell agreed). Lord Slynn described the case there as raising two conflicting policy considerations, namely: (1) the court should not frustrate a fugitive's accepted rights to sue in domestic courts by refusing a procedural step which is available to all litigants unless there is a valid reason to the contrary; and (2) the civil courts should not take steps the effect of which is to frustrate or impede with the due execution of the criminal procedure of another jurisdiction (which is a reference to the fact that because there was an extradition treaty between the United Kingdom and the United States and, if Mr Polanski had gone to England to give evidence in person, the United Kingdom would be required to respond to any request for his extradition to the United States). 71 Lord Slynn's core reasoning is encapsulated in [56] of his Lordship's speech: The task of the Court here is one of balancing different policy considerations and not merely deciding case management. Where a person convicted on his own admission flees the jurisdiction, it seems to me that in the absence of special factors compelling a different result, a video link conference may and should here be refused where the sole reason for asking for it is that he wishes to escape conviction or sentence in the country where he has commenced proceedings or to avoid extradition to another country for the same reason. The mere fact that the person cannot pursue proceedings here does not necessarily mean that a video link must or should be granted. The policy requirement of satisfying the criminal sentence is by no means less important than the desirability of his suing in libel for an allegation which is serious but no more serious than the criminal offence of which he has been convicted. The possibility of suing in France is a further contraindication to any obligation to grant such a video link. 72 With respect, I consider that there is considerable force in the dissenting views in Polanski. More significantly, however, Polanski necessarily reflects its own particular facts. The Seymours are in a different position, having chosen to leave Australia lawfully before initiating Pt IVC proceedings and then indicating that they will not return to Australia to give evidence in that proceeding unless all the elements of their letter of demand are met. Ultimately, therefore, it is unnecessary to state whether the majority view in Polanski is correct because the facts are distinguishable. 73 I also respectfully agree with the primary judge's statement at [77] of his Honour's reasons for judgment that he did not view cases such as Pirovic and Arnold as adopting or imposing a rule. This important point is reinforced by the primary judge's further statement at [118] of his reasons for judgment (emphasis added): As I said earlier in this judgment, my conclusions relate to the facts of this particular case. I am not to be taken to suggest that it can never be relevant in the case of a witness (or even a party) to take into account whether the Commissioner is prepared to indicate that a DPO will not issue. I am not to be taken to make any criticism of Arnold. The circumstances of the present case are unusual. The taxpayers point blank refused to come to Australia unless stipulated conditions were met. An assurance about a DPO would not have been sufficient. The Commissioner's position about that issue could have no impact on the practical position. 74 Fourthly, the Court's attention was not drawn to any Australian decision in which Polanski has been considered. As noted above, reference was made to Erceg. That case involved an application by the plaintiff to have the evidence of a non-party witness (the plaintiff's son) to be given by video link in circumstances where the witness was an important witness, was permanently resident outside New Zealand and was unwilling to travel to New Zealand "under present circumstances". Justice Venning noted at [19] that the reason why the witness did not want to return to New Zealand related to the fact that there was a past dispute between the Inland Revenue Department in New Zealand and the witness. A warrant had been issued but the witness left New Zealand before the warrant could be served. In circumstances where Venning J was satisfied on the evidence that there was a real risk that the witness would be arrested if he returned to New Zealand to give evidence in support of his mother's case and applying the majority's reasoning in Polanski, his Honour found that there was good reason for the witness not to return to New Zealand. While also noting that it would be the plaintiff who would be disadvantaged if her son did not give evidence (and not the son himself) the application for evidence to be given by video link was granted on certain conditions. 75 I do not consider that either this outcome or the reasoning of Venning J is inconsistent with that of the primary judge here who, as emphasised above, did not purport to prescribe an absolute rule one way or the other but simply focused on the Seymours' particular circumstances and their clearly stated position. 76 It is convenient to now turn to those aspects of the appeal which relate to the primary judge's finding that the AAT's decision also gave rise to a related jurisdictional error because its decision to permit the Seymours to give their evidence by video link: (1) denied the Commissioner procedural fairness; and (2) was in contravention of s 39 of the AAT Act. 77 For the following reasons I am not satisfied that the appellants have established any appealable error in relation to the primary judge's findings on this aspect of the Commissioner's judicial review application. 78 The primary judge's reasoning in relation to these findings is set out in [84]-[88] and [111] of his Honour's reasons for judgment which, for convenience, are as follows: 84 Ground 2 alleges a breach of s 39 of the AAT Act and of procedural fairness. In support of Ground 2, the Commissioner submitted that the taxpayers were seeking to dictate the terms upon which their application would be heard, or upon which the matter would proceed. I do not think that submission should be accepted because the taxpayers clearly accepted in their affidavits that one consequence of a refusal to give evidence in Australia might be that their applications to the AAT would be unsuccessful. However, I think it is certainly true to say that the taxpayers were seeking to dictate the circumstances in which, if at all, they would give evidence. 85 The AAT suggested that if evidence was not taken by video link the taxpayers' affidavit material might need to be considered "on its own" (at [31]) and the taxpayers would be "deprived of the opportunity to give oral evidence" (at [33]). In the circumstances of the present case, that would be the result of their declared choice. That choice was not solely related to the possibility of a DPO. In that connection, I can see no relevance in the circumstance that the taxpayers bore the onus in the AAT proceedings. 86 Their position was, as disclosed by their affidavits, that unless assured that they would neither be prevented from leaving, nor subject to prosecution, they would not travel to Australia to be cross-examined. That was their declared choice. It took into account the possible consequence for their respective applications to the AAT. I see no basis upon which to assume that if the Commissioner had given an undertaking not to issue a DPO, the taxpayers would have come to Australia. They said they would not. 87 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. 88 In my view, in combination with the matters discussed further hereunder, that does amount to a failure to observe and apply s 39 of the AAT Act and a denial of procedural fairness to the Commissioner. … 111 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. 79 I respectfully disagree with Pagone J that it was not open to the primary judge to conclude on the basis of the material before him that the AAT's decision had the effect of denying the Commissioner procedural fairness and also constituted a contravention of s 39 of the AAT Act. 80 Unless and until the AAT's decision to permit the appellants to give their evidence by video link was set aside or reversed by the AAT itself, the Commissioner's right to examine the appellants was profoundly affected by the fact that their evidence would be given not in person in Australia but by video link from Mauritius. As the primary judge correctly pointed out at [102] of his reasons for judgment, this profound effect arose because: (a) the AAT had limited powers to compel or control a party who gave evidence by video link from Mauritius; (b) the prospect of an effective cross-examination on documents was "effectively illusory", particularly in circumstances where it was evident that there would be voluminous documentation; and (c) the ability to cross-examine on credit would be no more effective. 81 In my respectful opinion, it was reasonably open to the primary judge to conclude that the AAT's finding at [32] of its reasons for decision that it "[did] not consider that cross-examination by the Commissioner would be impeded" was wrong and gave rise to the related jurisdictional error identified by his Honour. 82 I respectfully disagree that there was no material before the primary judge about the live issues in the Pt IVC proceeding to provide a proper foundation for those conclusions. The evidence filed below in support of the Commissioner's judicial review application comprised an affidavit by the Commissioner's instructing solicitor which, relevantly, contained: (a) indexes to the evidence filed by the appellants in two tranches in the AAT proceeding, including the names of 14 witnesses (including those of the appellants) who had filed affidavits and/or witness statements, together with references to multiple trust business records, bank statements and other documents which the appellants proposed to rely upon in the Pt IVC proceeding; (b) copies of the appellants' respective affidavits dated 7 February 2014. They confirmed that the disputed tax liabilities related to assessments which were based on ATO audit papers which contained findings that the appellants had engaged in "fraud or evasion" throughout the period 2000-2010. A copy of the ATO audit decision which explained the second set of taxation assessments which had been issued to Mr Seymour (for an amount of approximately $7.2 million for tax and penalties) was apparently annexed to his affidavit. Mr Seymour said in his affidavit that an accountant, Mr Vanda Gould, "was closely involved in the management of my tax affairs in the period 2000 - 2010" and that he had "placed significant trust" in Mr Gould. Mr Seymour also described the dealings he had had with Mr Gould during the relevant period and the advice he said he had received from Mr Gould concerning the establishment of a superannuation fund in Samoa, which fund was at the heart of the Pt IVC proceeding; and (c) a copy of a witness statement by a solicitor, Ms Justeen Dormer. Ms Dormer acted for Mr Gould, whom she said was facing various serious criminal charges arising from taxation advice provided by him and some associates. Ms Dormer said in her witness statement that Mr Gould declined to make a witness statement in the appellants' Pt IVC proceeding for fear that it would compromise his defence to the criminal charges against him. 83 All this evidence simply served to highlight the significance of the appellants' own evidence in response to the serious allegations made against them of fraud and evasion and provided strong support for the Commissioner's opposition to having the appellants give their evidence by video link and not in person. 84 The primary judge was also aware of the fact that the AAT had itself acknowledged in [32] of its reasons for decision that the evidence of the appellants was important and that their credit might be put in issue in the Pt IVC proceeding. Indeed, this had been expressly acknowledged in the AAT by the appellants' junior counsel. Nevertheless the AAT had concluded that "it is unlikely that their evidence will necessarily be determinative". Consequently, the AAT did not consider that cross-examination of them by the Commissioner "will be impeded". That reasoning is highly problematic, particularly in circumstances where the appellants' credit was at issue, there were voluminous relevant documents and the Commissioner not unreasonably wanted to cross-examine the Seymours in person in a case where allegations of fraud or evasion had been made against them. 85 In my respectful view, it was reasonably open to the primary judge, having regard to the material before him and the submissions which were made to him, to conclude that the AAT's decision gave rise to procedural unfairness and contravened s 39 of the AAT Act. No appealable error has been established.
Notice of contention 86 At the end of the hearing of the appeal the Commissioner made an oral application seeking an extension of time to file a notice of contention. Such leave was required under r 1.39 of the Federal Court Rules 2011 (Cth) (FCRs). The proposed notice of contention sought to have the judgment below affirmed on the following additional grounds: 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. 87 The parties took advantage of the opportunity afforded by the Court to file written submissions in respect of the proposed notice of contention. The parties were subsequently informed that the Court had decided to refuse an extension of time to file the proposed notice of contention and that reasons would be given in the final reasons for judgment. I will now state my reasons for refusing the Commissioner's application. 88 As is evident from the terms of the proposed notice of contention the Commissioner sought to have the primary judge's decision affirmed on the basis that the AAT misapplied s 35A of the AAT Act by not requiring the appellants to demonstrate that they had a "persuasive case" for their evidence to be taken by video link in circumstances where the Commissioner opposed that course. Although that contention was put in various ways, I will hereafter refer to it as "the primary issue". 89 My reasons for refusing the Commissioner's application are as follows. 90 First, no explanation was given by the Commissioner for the 3 month delay in making the application (see Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; (2012) 200 FCR 296 (Grimaldi) at [760]-[779]). 91 Secondly, the primary issue was not raised below by the Commissioner and no explanation was provided for this omission. Presumably, a forensic choice was made by the Commissioner and his legal representatives in circumstances where no less than 7 other grounds for judicial review were raised below. Moreover, significantly, ground 1 of the judicial review application involved a claim that the AAT has misconstrued s 35A for reasons apart from those now sought to be raised in the primary issue. And grounds 3 and 4 of the judicial review application also both related to s 35A. Respectively they raised claims of irrelevant considerations having been taken into account by the AAT and a failure to take into account mandatory relevant considerations. Ground 7 of the judicial review application also related specifically to s 35A, where it was claimed that the power under that provision had been exercised in a manner which was unreasonable, irrational or illogical. There can be no doubt, therefore, that the Commissioner and his legal representatives turned their minds to the proper construction and application of s 35A. Presumably, they made a conscious decision not to raise the primary issue even though several other claims were made in respect of that provision. No explanation has been offered for this apparent forensic choice nor any justification given as to why the Commissioner should now be permitted to run a different case. 92 Thirdly, if leave was granted to now raise the primary issue, there would have been further delay in the disposition of the appeal (noting that the AAT proceedings are ongoing) because both the appellants and the Commissioner indicated that they would seek an opportunity to make submissions on the substantive issue if time was extended: see Grimaldi at [779]. Necessarily, therefore, permitting the Commissioner to rely on the proposed notice of contention would have meant that additional Court time would have had to be expended to consider supplementary written submissions by the parties relating to the primary issue. Moreover, not unreasonably, the appellants indicated that they would also wish to make oral submissions on the issue, which would have required a further oral hearing. These matters highlighted the appropriateness in the particular circumstances here of holding the Commissioner to the manner in which he had conducted his case below. 93 Fourthly, it may be accepted that the presence or absence of prejudice to the appellants is a relevant consideration to be taken into account in the exercise of the discretion whether or not to extend time. However, that consideration is not determinative and it may be outweighed by other considerations. I consider that that is the case here where the appellants did not contend that their evidentiary position would be prejudiced if the Commissioner was permitted to raise the primary issue, however, their prejudice related to the tasks which would have flowed if the notice of contention was allowed to be run, including the making of written and oral submissions as described above. 94 In my view, the matters outlined above provide a sufficient basis to reject the Commissioner's application for an extension of time. On an application such as this, it is neither essential nor appropriate to express a final view on the substantive merits of the primary issue and I decline to do so. I can indicate, however, that I have serious doubts whether the Commissioner is correct in his argument, which underpinned the proposed notice of contention, that the effect of cases such as Pirovic and Campaign Master is to impose an obligation on the appellants in a case such as this to demonstrate "a persuasive case" for being permitted to give their evidence by video link. 95 For these reasons, the Commissioner's application for an extension of time to file a proposed notice of contention should be dismissed, with costs.
Conclusion 96 For these reasons, I consider that the appeal should be dismissed, with costs. The application for leave to file the notice of contention should also be dismissed, with costs. I certify that the preceding sixty one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.
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.
Seymour
Commissioner of Taxation
[2012] AATA 486
[2011] AATA 837
(2000) 203 CLR 172
(2009) 239 CLR 175
(2009) 181 FCR 152
(1998) 197 CLR 172
(2012) 200 FCR 296
(2002) 118 FCR 289
(2012) 288 ALR 601
(1986) 162 CLR 24
(2001) 206 CLR 323
(2012) 207 FCR 87
[2001] HCA 30
[1998] HCA 67