ALYSSA TREASURY SERVICES LTD and COMMISSIONER OF TAXATION

[2011] AATA 578

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 578

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4046

TAXATION APPEALS DIVISION		)
Re		Alyssa Treasury Services Ltd

Applicant

And Commissioner of Taxation

Respondent

DECISION

Tribunal P W Taylor SC, Senior Member

Date22 August 2011

PlaceSydney

Decision The Tribunal refuses the Applicant’s request for an advance indication that the Tribunal will not have regard to the transcript of the 7 March 2008 conversation.

..................[sgd]............................

P W Taylor SC
  Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – proceedings – admissibility – transcript of conversation – application by Applicant for Tribunal to make ruling prior to the hearing of the substantive matter – application refused

Evidence Act 1995 (Cth) s 138

Invasion of Privacy Act 1971 (Qld) ss 43, 44, 45, 46

REASONS FOR DECISION

22 August 2011 P W Taylor SC, Senior Member

1.The Respondent proposes to tender a 15 page transcript of a conversation between AWL, WAL and NP at the forthcoming hearing of this application.  The conversation occurred during a 7 March 2008 meeting at the Brisbane office of WAL’s accountancy practice.  AWL was an employee of the practice.  The capacity in which NP participated in the conversation is a matter of contention.

2.AWL recorded the conversation on a digital dictaphone, which he had in his pocket during the meeting. Subsequently an investigator firm retained by WAL copied the dictaphone’s memory card onto a compact disc.  The recording was then transcribed. AWL and WAL reviewed the transcription.  Where parts of the recording were not clear, and the transcription consequently incomplete or inaccurate, AWL and WAL caused corrections to be made.  AWL claims the corrections accord with his recollection of the conversation.

3.The Applicant, who is represented by NP in these proceedings, objects to the tender of the transcript.  It has requested the Tribunal to rule on its objection in advance of the hearing. The purpose of the request for an advance ruling is said to be to obviate (or confirm) the need for the Applicant to adduce other testimonial evidence it contends would rebut or minimise the apprehended significance of the contents of the conversation.

The Applicant’s admissibility grounds of objection

4.The Applicant’s grounds of objection to the conversation transcript are numerous.  They are:

(a)that the conversation was illegally recorded, or alternatively that the recording was illegally copied;

(b)that the conversation was expressly characterised as having been conducted on a “without prejudice” basis;

(c)that key aspects of the recording are “inaudible” and that the conversation transcript has been reconstructed by AWL;

(d)that statements made by NP during the course of the conversation cannot be attributed to the Applicant, because he was not its representative at the time;

(e)that the contents of the conversation reveal they were exclusively concerned with NP’s personal perspective, and do not relevantly relate to the Applicant;

(f)that the conversation provides no grounds for, and actually contradicts, the Respondent’s contentions about its relevance and probative value;

(g)that the conversation has not been shown to be relevant…