Dunn and Commissioner of Taxation
[2012] AATA 486
•23 July 2012
[2012] AATA 486
Division TAXATION APPEALS DIVISION File Numbers
2010/0059–0060
2011/1752–1758
Re
GREGORY DUNN
APPLICANT
And
COMMISSIONER OF TAXATION
RESPONDENT
ORDER
Tribunal Deputy President S D Hotop
Date 23 July 2012 Date of written reasons
27 July 2012 Place Perth The applicant’s application for leave, pursuant to section 35A(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to give oral evidence by video link from Thailand in the hearing of these proceedings is refused.
....................[sgd]....................................................
S D Hotop, Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – hearing – oral evidence – applicant resident in Thailand – application by applicant for leave to give oral evidence by video link from Thailand in hearing in Perth – relevant considerations – applicant's health – importance of applicant’s evidence – credibility of applicant – likely duration of cross-examination of applicant – volume and complexity of documents to be managed in cross-examination – relevant considerations on balance militate against grant of leave to give evidence by video link – application for leave to give evidence by video link refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 35A(1)
CASES
ASIC v Rich [2004] NSWSC 467
Australian Competition and Consumer Commission v StoresOnline International Inc [2009] FCA 717
Blackrock Asset Management Australia Services Ltd v Waked (No 2) [2011] FCA 479
Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Re Nugent and Australian Broadcasting Authority (2004) 87 ALD 199REASONS FOR ORDER
Deputy President S D Hotop
27 July 2012
Introduction
On 23 July 2012 I made an order in the following terms:
“ The applicant’s application for leave, pursuant to section 35A(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to give oral evidence by video link from Thailand in the hearing of these proceedings is refused."
On that occasion I stated orally my reasons for making that order.
By letter dated 23 July 2012 an officer of the Australian Government Solicitor, representing the Commissioner of Taxation, requested the Tribunal to provide a written statement of the reasons for the abovementioned order. That letter was received by the Tribunal on 24 July 2012.
A statement of my reasons for making the abovementioned order follows.
Background
Gregory John Dunn (“the applicant”) has applied to the Tribunal for review of reviewable objection decisions, dated 19 November 2009 and 15 March 2011, of the Commissioner of Taxation (“the respondent”) in relation to various assessments and amended assessments of income tax for the income years 1997–98, 1998–99, 2002–03 and 2003–04.
On 10 April 2012 the applicant applied to the Tribunal for leave to give evidence by video link from Thailand in the hearing of these proceedings. The respondent opposes that application.
Relevant Legislation and Principles
Section 35A(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) relevantly authorises the Tribunal “in the hearing of a proceeding” to:
“ allow a person to participate by:
(a) telephone; or
(b) closed-circuit television; or
(c) any other means of communication.”
The reference in s 35A(1) to a person participating in a hearing of course includes a witness giving evidence at a hearing, and the phrase “any other means of communication” of course includes communication by video link.
It is necessarily implicit in s 35A(1) of the AAT Act, as Justice Downes, President, indicated in Re Nugent and Australian Broadcasting Authority (2004) 87 ALD 199 at 201, that witnesses in hearings before the Tribunal will ordinarily give their evidence in person in the hearing room and that the leave of the Tribunal is required before a witness may give oral evidence from another location by telephone or other means of communication.
Section 35A(1) of the AAT Act confers on the Tribunal a broad, in terms unfettered, discretionary power to grant or refuse an application for such leave. However, as the applicant submits, that discretionary power must, if it is to be exercised lawfully, be exercised having regard to the subject matter, scope and purpose of the AAT Act and in accordance with the policy and objectives of that Act. The relevant statutory context, as submitted by the applicant, comprises the following provisions of the AAT Act:
·s 2A – “In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”;
·s 33(1)(a) – “the procedure of the Tribunal is … within the discretion of the Tribunal”;
·s 33(1)(b) – “the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit”;
·s 33(1)(c) – “the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate”;
·s 39(1) – “… the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case …”.
To that list of provisions should be added:
·s 40 which confers on the Tribunal, inter alia, procedural powers in relation to the giving of evidence at hearings; and, very importantly
·s 43(1) which empowers the Tribunal to perform its ultimate function, namely, to make a substantive decision on the relevant application for review – a decision which the Federal Court of Australia in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 (per Bowen CJ and Deane J), and in subsequent cases, has described as the “correct or preferable” decision on the material before the Tribunal.
In their submissions the parties cited numerous judicial authorities regarding the exercise by courts in Australia, namely, the Federal Court and certain State Supreme Courts, of corresponding statutory discretionary powers to allow oral evidence to be given at a hearing by video link. Although those authorities are useful to the extent that they refer to, and discuss, various factors which will generally be relevant in the exercise of such discretionary power, they are of limited assistance because the exercise of such discretionary power in a particular case will ultimately depend on the facts and circumstances of that case: see ASIC v Rich [2004] NSWSC 467 at para 16 (per Austin J).
I accept the applicant’s submission to the effect that a proper exercise of the discretionary power conferred by s 35A(1) of the AAT Act will involve a balancing exercise, having regard to the relevant facts and circumstances of the particular case, in which those considerations which weigh in favour of allowing oral evidence to be given by video link are balanced against those considerations which weigh against that course, with a view to determining what the fair administration of justice, including procedural fairness, as between the parties requires in the particular case: see ASIC v Rich (above) at para 44; Australian Competition and Consumer Commission v StoresOnline International Inc [2009] FCA 717 at para 14 (per Edmonds J).
Although the respondent submitted, relying principally on Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152 at 171 (per Buchanan J) and Blackrock Asset Management Australia Services Ltd v Waked (No 2) [2011] FCA 479 at paras 45–46 (per Perram J), that the “onus is on the applicant to show good reason and to make out a persuasive case why permission to give his evidence by video link should be granted by the Tribunal”, it seems to me that Buchanan J and Perram J in the abovementioned cases were saying no more than that where one party opposes an application by the other party for leave to give evidence by video link and points to considerations which militate against the granting of such leave, it will, from a practical point of view, be necessary for the party applying for leave, if such application is to be successful, to point to considerations which militate in favour of the granting of leave which outweigh the considerations which militate against it. It will then be for the court or tribunal, in the exercise of its discretion, to balance those competing considerations in order to determine whether, having regard to its obligation to do justice as between the parties, such leave should, or should not, be granted. I note, furthermore, that Buchanan J in Campaign Master (at 171, [78]) acknowledged that such a balancing exercise was appropriate, and that Perram J in Blackrock ultimately adopted that approach (see paras 45, 47–52).
Considerations Relied On by the Parties in this Case
The applicant
The applicant, in support of his application for leave to give his evidence by video link from Thailand, relies on health considerations as set out in an affidavit, sworn by him on 27 March 2012, as follows:
“ …
2.I live permanently in Hua Hin, Thailand and have done so since 1 July 2003. I had previously spent a considerable amount of time in Hua Hin between August 1996 and July 2003.
3.Recently, in Matter No WT 2004/134 between me and the Respondent in a Tribunal Hearing conducted in Perth, I gave evidence by video conference from Bangkok, Thailand (Satcom Matter).
4.My reason for applying to the Tribunal to give evidence by video conference in the within matter is that I suffer from motion sickness (kinetosis), and have done for as long as I can remember.
5.The first symptoms I recall experiencing were when I was a young boy in the family car. At that age, unless I rode in the front seat I experienced dizziness and nausea. At 17 years of age I discovered that there were no motion sickness symptoms at all if I was the driver of the car, rather than a passenger. I tried a host of medical, folk and homeopathic remedies to no avail. The different medical remedies (ie tablets) made me very sick and partially led to the discovery that I have a strong adverse reaction to synthetic drugs. The folk remedies such as ginger tablets, sucking on slices of lemon, chewing peppermint or taking Trytophan (an amino acid) tablets all failed miserably, as did homeopathic drops placed under my tongue.
6.However, in my early 20’s I read about sea bands. Attached and marked ‘Annexure 1’ is some reading material about sea bands which can be viewed in its entirety at and marked ‘Annexure 2’ is a photo of my sea-bands (which are 20 or more years old). I discovered that this simple acupressure product worked for me in some situations by helping to minimize the symptoms of motion sickness.
8.I learnt the hard way about boats on a holiday I booked with my brother, sister and then girlfriend for a halfway round the world cruise (21 days)on the QE2 Liner in 1995/96. I was very confident at the time that the sea bands would work. Our cruise started in Sydney. Thirty minutes out of the Sydney Harbour ‘heads’ extreme motion sickness symptoms manifested. I was removed by the ship’s medical staff 2½ days later at the port of Fremantle, Western Australia, very dehydrated (as I could not even hold down water) and very sick. I had lost approximately 4 kgs in body weight.
9.Plane flights were manageable with sea bands during my early 20’s to my early 40’s. I have almost always travelled economy class as it has seats positioned over the wing and is the most stable position in the plane. The shorter the flight time, the better. The best results were achieved if I deprived myself of heavy meals and slept 24 hours beforehand and then slept and did not eat or drink on the plane. I could not read on the plane and watching any form of entertainment heightened the risk of symptoms magnifying.
10.By 2003, the sea bands were becoming of less assistance to me in air travel, just like in boat travel.
11.My last experience of plane travel was a flight to Switzerland in 2007. To break the trip up I went to the Philippines first and then, many days later, flew to Geneva after taking a further transit break in Europe.
12.I was very ill on all of those legs of the journey. My wife accompanied me on each leg of the journey as she was very concerned for my health. The return trip was equally traumatic. As my wife had visa issues in coming back to Switzerland (where she left me after 6 days as her visa expired) she specifically sent our daughter Mary to accompany me on the return trip from Geneva to Bangkok. Again I was very sick. As these were the worst air motion sickness symptoms I have experienced to date, I have not travelled by air since that date. My last plane trip before that was in May 2005, a return flight from Bangkok to Perth.
13.The physical symptoms of motion sickness from which I suffer are as follows:
13.1.firstly, dizziness (a spinning sensation in the head). This is akin to vertigo from which I also suffer;
13.2.secondly, an intense headache (migraine) develops and I feel the need to lay down on the floor, or ground and adopt the fetal position;
13.3.then, I feel the need to push my head against my chest to alleviate the intense headache (with little effect, but the desire is overwhelming);
13.4.then, the overwhelming need to vomit (which manifests in projectile vomiting). This usually does not stop for many hours, and I find myself ‘dry-reaching’ for much of it;
13.5.then, profuse sweating and intense fever develops;
13.6.then, the need to lay in cool/cold water due to the profuse sweating and intense fever symptoms;
13.7.lastly, the need for darkness and total absence of noise. Sometimes during this phase, I black out.
14.Depending on the severity, the above physical symptoms take from 24 to 48 hours to subside. At the end of this period I am left very physically drained and debilitated. I generally lose from 2 to 4 kg in body weight, which is significant as I am of slight build (ie 5’10” and 68 kgs). It can take as long as 2 months for me to regain my normal body weight. I believe my predicament has worsened since 2007, as I now feel the onset of motion sickness symptoms just from riding a motorcycle with sudden bursts of acceleration and even when driving a car at night (which I now no longer do).
15.I am a patient of San Paulo Hua Hin Hospital bearing patient number 2555-000783. This is my regular medical clinic and hospital, which I have utilised for nearly 10 years in Hua Hin. The website of the hospital can be viewed in its entirety at (Website). Attached and marked ‘Annexure 3’ is a copy of the homepage of the Website.
16.Dr Boripan Laisirikoon is one of the San Paulo Hospital’s senior doctors. Attached and marked ‘Annexure 4’ is a copy of San Paulo Hospital’s resident doctors obtained from the Website.
17.I recently contacted Singapore Airlines to advise them of my condition and enquire what their position was in relation to a passenger travelling with a known medical condition. I explained my condition. I was advised that, having regard to the severity of my condition, I was obliged to have my doctor complete a medical information sheet for lodgment with the airline for them to assess whether to accept me as a passenger. I received a similar response when I made the same enquiry of Thai Airways. The reason I enquired of Singapore Airlines first was for the stopover in Singapore on a trip to Perth which would break-up the journey.
18.On 12 March 2012, Dr Laisirikoon provided me with a Medical Certificate stating until I cease experiencing the symptoms of severe motion sickness I am not fit to fly. Attached and marked ‘Annexure 5’ is a copy of that Medical Certificate. Dr Laisirikoon told me he was particularly concerned for me travelling by air due to my inability to be able to use the usual drugs to treat my motion sickness as I have a severe adverse response to synthetic drugs.”
Annexure 5 to the applicant’s affidavit is a pro forma document headed “Medical Report I Out-patient”, dated 12 March 2012, which relates to the applicant and contains a signature purporting to be that of Dr Boripan Laisirikoon. The contents of that document comprise handwritten comments alongside printed headings in the form as follows:
“ …
Present symptoms and duration
Severe vomitting during the travel by plane
Pre-existing condition -
Diagnosis severe motion sickness
Treatment/further treatment plan - Rest
Recommendation regarding to the patient’s travel plan:
›Fit to continue travelling
›Unfit to travel until
›Need follow-up on
›Need special arrangement as following
Not fit to fly untill the symptom disappear
…” (sic).
The respondent
The respondent, in support of his opposition to the applicant’s application for leave to give evidence by video link from Thailand, relies on various considerations which may be summarised as follows:
·the applicant’s evidence will be centrally important to the case;
·the applicant’s credibility will be in issue;
·the hearing is expected to last up to 10 sitting days and a significant part of that time (up to 5 sitting days) will be required for cross-examination of the applicant which will involve taking him through extensive documentation prepared and executed by him and others in relation to several complex financial transactions and arrangements;
·there is a high probability that the use of video link for the giving of the applicant’s evidence will frustrate or delay the management of that extensive documentation during his cross-examination and thereby hinder the effectiveness of that cross-examination.
Balancing the Competing Considerations
The parties filed written submissions and supporting material, and made oral submissions, and I have had regard to those submissions and that material.
As regards the respondent’s submissions, I accept that the applicant’s evidence will be centrally important in this case and that his credibility is likely to be a very important issue. I also accept that the respondent’s cross-examination of the applicant is likely to be lengthy – probably extending over several sitting days (although I note that the hearing has not yet been listed and its precise duration has not yet been fixed) – and complex and involve the management of voluminous and complex documentation. I note, however, the applicant’s submission that the overall duration of that cross-examination would not be significantly affected by time-zone differences if he were allowed to give his evidence by video link from Thailand given the 1-hour time difference between Bangkok and Perth. In any event, I accept that the cross-examination of the applicant is likely to be lengthy, and that the effectiveness of that cross-examination would be likely to be adversely affected to a substantial degree if the applicant were allowed to give his evidence by video link.
In my opinion the considerations relied on by the respondent are important considerations which go both to the respondent’s right to be afforded a reasonable opportunity to present his case by way of conducting an effective cross-examination of the applicant and to the Tribunal’s function of reaching the correct or preferable decision on the material before it. These considerations, in my assessment, militate strongly against the applicant’s being allowed to give his evidence in the hearing by video link from Thailand instead of by personal attendance at the hearing in Perth.
The question is, however, whether those considerations are outweighed by the health considerations which the applicant has proffered in support of his application for leave to give his evidence by video link from Thailand. In my assessment, they are not. Although the applicant has provided a sworn affidavit deposing to his suffering from motion sickness and the effect of air travel on the symptoms he has experienced as a result of that condition, I regard that evidence as self-serving and, of itself, of insufficient weight to outweigh the abovementioned competing considerations relied on by the respondent.
The question then is whether the abovementioned medical material provided by the applicant in relation to his asserted condition of motion sickness and its asserted effect on his fitness to travel by air is sufficiently substantial and persuasive such that it, together with the applicant’s affidavit, should be assessed as outweighing the abovementioned considerations relied on by the respondent. In my assessment, it is not. That medical material consists entirely of the abovementioned medical “report” said by the applicant to have been provided by Dr Laisirikoon, dated 12 March 2012 (see paragraph 13 above). That medical “report” is brief in the extreme, consisting entirely of very short statements in relation to the printed headings in the form, and I accept the respondent’s submission that that “report” is unsatisfactory for present purposes and that little weight should be given to it.
Accordingly, I conclude that, on balance, the considerations relied on by the respondent, which militate against allowing the applicant to give evidence at the hearing in Perth by video link from Thailand, outweigh the health considerations and related medical material relied on by the applicant in support of his application for leave to give his evidence at the hearing by that means.
Conclusion
Having regard to the subject matter, scope and purpose of the AAT Act and, in particular, ss 2A, 33(1), 39(1), 40 and 43(1) of that Act, I have, for the reasons previously discussed, come to the conclusion that, in the circumstances of this case, it would not be appropriate for the applicant to be allowed to give oral evidence by video link from Thailand in the hearing of these proceedings.
Order
The applicant’s application for leave, pursuant to s 35A(1) of the AAT Act, to give oral evidence by video link from Thailand in the hearing of these proceedings is refused.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop ....................[sgd D Brodie]...................................
Administrative Assistant
Dated 27 July 2012
Date of hearing 23 July 2012 Date of receipt of request for
written statement of reasons24 July 2012
Counsel for the Applicant Mr J C Vaughan Solicitors for the Applicant DLA Piper Australia Counsel for the Respondent Ms L B Price Solicitors for the Respondent Australian Government Solicitor
2