Harold Murray and Commissioner of Taxation (No 2)
[2012] AATA 450
•13 July 2012 18 July 2012
[2012] AATA 450
Division TAXATION APPEALS DIVISION File Number(s)
2009/4786; 2009/5888-5894; 2011/5622
Re
Harold Murray
APPLICANT
And
Commissioner of Taxation (No 2)
RESPONDENT
Decision
Tribunal Deputy President PE Hack SC
Date
Date of written
Reasons13 July 2012
18 July 2012
Place Brisbane The applicant's application for his oral evidence to be given by video link or be taken by commission in Singapore is refused.
................................[Sgd]..................................
Deputy President PE Hack SC
Catchwords
PRACTICE AND PROCEDURE – Evidence – application for oral evidence to be given by video link or be taken by commission – health of applicant – unable to travel unaccompanied – no reason shown why appropriately qualified carer could not accompany applicant – concern regarding applicant’s bona fides – application refused.
REASONS FOR DECISION
Deputy President PE Hack SC
18 July 2012
This hearing is scheduled to commence on 16 July 2012. It has been set down for five days. On 10 July 2012 the applicant wrote to the Tribunal seeking that orders be made,
that the oral evidence of the applicant be received by the Tribunal by video link or alternatively that his oral evidence be taken on commission with the Tribunal or sitting at a time and place in Singapore as may be ordered.
The making of that application had been foreshadowed to tribunal staff the previous day.
These proceedings have a considerable history in the Tribunal. Time constraints prevent a recitation of all of the history; it will suffice to start with the decision I made in November 2011 refusing the applicant’s earlier application to give evidence by video[1]. The basis of that application was the applicant's claimed fear that if he returned to Australia from his residence in Singapore for the purposes of the hearing he might be arrested or detained by the authorities in this country. The health of the applicant was mentioned only in passing in the material in support of the application and it was not a basis on which the application was pressed.
[1] See Murray & Commissioner of Taxation [2011] AATA 837. I have used the same pseudonym.
After refusing that application I made directions for the completion of pre-hearing steps leading to a hearing intended to commence on 17 May 2012. Then on 8 May 2012, shortly before that hearing was due to commence, I dealt with applications by the applicant including an application that his evidence be heard on commission in Singapore and that the hearing scheduled to commence on 17 May 2012 be adjourned. I refused those applications for reasons given on that day and subsequently published on 18 May 2012. I will not repeat what I said there.
Then on 17 May 2012 at the outset of the hearing a further application for an adjournment was made. A variety of reasons were given in support of the application however I was persuaded to grant it on the basis that there appeared to be a prospect that the applicant would obtain from the Lichtenstein bank, where his account was held, documents which might shed light on the precise amounts of income earned in that account throughout the period in issue. The Commissioner, properly, did not oppose that adjournment on that basis.
As it transpired documents of that description were not provided and the matter came back before me on 26 June 2012 for further directions. On that occasion I again made directions with a view to having a hearing commencing on 16 July 2012 for five days. Because of a suggestion at that time of a further application for directions about the manner of receiving the applicant’s evidence, a direction was made that required the applicant to lodge any such application with the Tribunal by 3 July 2012.
The application with which I am now dealing was, as I have said, lodged on 10 July 2012. The reasons proffered for the delay are unconvincing however the application proceeded.
The application was supported by two lever arch volumes of material, much of which went to questions regarding the applicant’s health. Included in the material was a report by Dr Alison Reid, a consultant neurologist, dated 9 July 2012 and reports from Dr Andrew Pan consultant neurologist in Singapore who is the applicant’s treating medical practitioner. Dr Pan was not available for cross-examination however Dr Reid was. I must say I was not impressed with the evidence of Dr Reid. It seems extraordinary that on the basis of a long-distance telephone discussion with the applicant and his wife and the perusal of a great deal of documentary material she disagreed, and disagreed quite vehemently, with Dr Pan. He was, she said, wrong in his diagnosis. She appeared to me, if I may say so, to have very much adopted the role of advocate rather than the objective reporter of opinions and opinions within her area of expertise.
Dr Reid concluded that the applicant’s fears are genuine. I do not accept that opinion as one properly within the expertise of a medical practitioner and I do not, in any event, accept the opinion. It is contrary to the demonstrated history of these proceedings.
Fortunately I do not need to resolve the issue of disputed diagnosis – it is enough to say that I am satisfied that the applicant suffers from a neurological condition of some type. For the purposes of this application I propose to assume that Dr Reid is correct in her diagnosis and that the applicant suffers from a long history of idiopathic epilepsy taking the form of partial complex seizures with secondary generalised tonic clonic seizures. Dr Reid expresses the opinion that that condition, together with other conditions of bronchiectasis, visual problems with reduced visual acuity and diplopia, mild cognitive decline and severe anxiety and stress,
… places Dr Murray at a significant risk if he were to travel by plane unaccompanied, and if he were required to remain in Australia without the support and care of his wife. He has a genuine fear that the circumstances of travelling on his own under extreme stress will trigger another tonic clonic seizure which may be lethal.
Dr Murray’s fear is genuine, it is also not unreasonable.
The Commissioner opposes the applicant being permitted to give evidence by video or that his evidence be taken on commission in Singapore. As to the first, it is submitted on behalf of the Commissioner that the evidence of the applicant, and his credibility, will be critical to the resolution of the principal issues in the case. So much was accepted by counsel for the applicant. In my earlier decision I referred to some observations of Buchanan J in Blackrock Asset Management Australia Services Ltd v Waken (No 2)[2] where his Honour concluded that one ought not,
… too lightly … 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 cross-examining party against claimed inconvenience both in individual cases and with respect to individual witnesses.
His Honour went on to conclude that a case must be made out for the use of video link evidence if it is opposed by an affected party.
[2] [2011] FCA 479 at [44]-[46].
Here, in my view, the applicant has not made out such a case. On the assumption that Dr Reid is correct in her diagnosis (and there is, as well, considerable doubt in my mind about the condition of bronchiectasis) her opinion is based on the proposition that the applicant would be required to travel unaccompanied. Even if that be right, it has not been demonstrated that the concerns of the applicant could not be met by having his spouse, who is also a medical practitioner, or another qualified carer, accompany him on a journey to Australia. Dr Reid has concluded that the applicant’s wife, Dr Mary-Lou Murray, is either unwilling or unable to return to Australia however there is no satisfactory evidence that that is the view of Dr Mary-Lou Murray. Dr Reid's conclusion is informed by her discussions with another person who has known the Murrays for a number of years.
But even if Dr Mary-Lou Murray was unable or unwilling to accompany the applicant to Australia there is no reason shown why another appropriately qualified carer could not accompany him and if necessary administer the requisite treatment for a tonic clonic seizure which I understand to be the administration of rectal Valium.
I remain then unpersuaded that the applicant has made out a case for giving evidence by video link.
I remain equally unpersuaded that the applicant should be permitted to give evidence by way of commission in Singapore. To do so is in my view unnecessarily disruptive to the Tribunal, its staff and the representatives of the other party and, moreover, will undoubtedly disrupt the conduct of the hearing. The applicant needs to make out a case for departing from the usual manner of providing evidence and has not done so.
Additionally I remain concerned about the applicant’s bona fides; there is a long history of delayed compliance and non-compliance with directions. In the decision I gave on 8 May 2012 I expressed concern about the bona fides of the application then made; events since then have done nothing to abate those concerns, to the contrary they have exacerbated them.
I would add that after the completion of these reasons in draft there was received in the Tribunal an affidavit said to be of Mary-Lou Murray dated 12 July 2012 which was said in its covering letter to be relied upon “for the purposes of yesterday’s application.” The letter and the affidavit was received by the Tribunal a little after 7 pm yesterday. The material was not before me at the hearing, no leave was sought to lodge an affidavit after the hearing and I have paid no regard to it in reaching this conclusion.
In the result I refuse the application of the applicant to give his evidence by video link or on commission in Singapore. The hearing will proceed as scheduled on Monday.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC. ................................[Sgd]..................................
Associate
Dated 18 July 2012
Date of hearing 13 July 2012 Counsel for the Applicant Mr R Dickson Solicitors for the Applicant Irish Bentley Counsel for the Respondent Dr K A Mellifont SC & Mr P A Looney Solicitors for the Respondent Australian Government Solicitor
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