HJJQ and Commissioner of Taxation (Practice and procedure)

[2025] ARTA 1295

HJJQ and Commissioner of Taxation (Practice and procedure) [2025] ARTA 1295 (1 August 2025)

Applicant:HJJQ

Respondent:  Commissioner of Taxation

Tribunal Number:                2023/9387, 2023/9388, 2023/9389, 2023/9390; 2023/9392, 2023/9393, 2023/9394, 2023/9395, 2023/9396, 2023/9397

Tribunal:General Member C. Willis   

Place:Melbourne

Date: 1 August 2025  

Decision:The Tribunal directs that the Applicant be permitted to give his evidence in the substantive hearing of this matter by audiovisual means from Malaysia.

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

General Member C. Willis

Catchwords

PRACTICE AND PROCEDURE – mode of hearing – discretion of Tribunal in relation to procedure - whether applicant should be directed to travel to Australia from Malaysia to give evidence in person – applicant with multiple medical conditions – circumstances to be taken into account by Tribunal – requirement for Tribunal to be accessible – procedural fairness to respondent where credibility of applicant’s evidence at issue – direction that applicant be permitted to give evidence by audiovisual means 

Legislation

Administrative Review Tribunal Act 2024 (Cth) – sections 9, 49, 50, 51, 52, 55, 75, 79
Administrative Review Tribunal (Common Procedures) Practice Direction 2024
Taxation Administration Act 1953 (Cth)

Cases
AMP Ltd v Chubb Insurance Australia Ltd (No 2) [2025] NSWSC 789
Auken Animal Husbandry Pty Ltd v 3RD Solution Investment Pty Ltd [2020] FCA 1153
Bicheno Investments Pty Ltd v Winterbottom (No 2) [2017] NSWSC 413
Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152
Capic v Ford Motor Company of Australia Limited [2020] FCA 486
Commissioner of Taxation v Oswal (No 5) [2015] FCA 1504
Earlmist Pty Ltd atf Earlmist Unit Trust and Commissioner of Taxation [2023] AATA 978
FLLH and Commissioner of Taxation [2025] ARTA 216
Palmer v McGowan (No 2) [2022] FCA 32
R v Walker [2025] NSWCCA 62

Statement of Reasons

BACKGROUND

1. This application has been listed for a substantive hearing across four days from 17 October to 22 October 2025.  The Applicant will be required to be available for examination and cross-examination on his evidence.  There will be three further witnesses who will be required to give evidence at the hearing.  

2. The Applicant lives in Kuala Lumpur.

3. On 16 May 2025 an officer of the Respondent sent an email to the Applicant’s representative, copied to the Tribunal Registry, stating:

   ‘Having regard to the importance of [HJJQ’s] evidence we require your client to attend the ART in person to give evidence.’

4. This followed a previous exchange of emails on 30 April 2025[1] between the Applicant’s representative and the Respondent in which the Applicant’s representative identified the four witnesses to be called by the Applicant (including the Applicant) and requested that those witnesses give their evidence to the Tribunal by telephone or video.  The Respondent said that it intended to oppose the Applicant giving evidence by video, but had no objection to the other three witnesses doing so.

   [1] See Annexure SC-1 to the Affidavit of Shaun Cartoon.

5. The hearing was previously listed for dates in July 2025, by way of video (MS Teams).  On 20 June 2025 the Respondent wrote to the Tribunal asking that a directions hearing be scheduled for the purpose of considering a request by the Respondent for directions that:

   1.     The final hearing of the proceeding be heard in person.

   2.    The Applicant attend the final hearing to give evidence in person.

6. The Applicant opposes the making of these directions and asks that he be permitted to give evidence by audiovisual means from Malaysia.

7. The purpose of this interlocutory hearing is to determine the mode of hearing, in particular whether the Applicant must give his evidence in person, and the Tribunal will not address any of the substantive issues in dispute. 

8. The following materials have been filed by the parties relating to this interlocutory question:

   (a)A statement of Mr Shaun Cartoon, a partner of the firm Arnold Bloch Leibler which represents the Applicant, dated 23 July 2025 and which annexes various items of correspondence between the representatives for the parties (‘Mr Cartoon’s Statement’).

   (b)An Affidavit affirmed by the Applicant on 22 July 2025 setting out details of his personal circumstances (‘Applicant’s Affidavit’).

   (c)An Outline of Submissions prepared by the Respondent’s counsel dated 24 July 2025 (‘Respondent’s Submissions’).

   (d)A list and copy of case authorities relied upon the by Respondent dated 24 July 2025 (‘Respondent’s Authorities’).

   (e)An Outline of Submissions prepared by the Applicant’s counsel dated 25 July 2025 (‘Applicant’s Submissions’).

   (f)A list and copy of case authorities relied upon by the Applicant dated 25 July 2025.

   (g)Two further case authorities sent by the Respondent to the Tribunal on 27 July 2025.

9. The fact that the parties have filed over 800 pages of material on this topic indicates that the question of how the Applicant will give his evidence to the Tribunal is of significance to both parties.

10. The Applicant’s Affidavit outlined his circumstances as follows:

    (a)He is 84 years old and will turn 85 by the time of the hearing.

    (b)He lives in Malaysia and has lived there his entire life, working as a doctor in Kuala Lumpur from the mid-1960s to mid-1980s.

    (c)His wife lives in a suburb of Perth.  Their adult son lives with his family in Kuala Lumpur and their daughter lives in Melbourne with her family.

    (d)He last travelled to Australia around February 2020 and due to COVID-19 related travel restrictions remained there until around May 2022 when he returned to Malaysia.  He has not been back to Australia since.  His wife has travelled to Malaysia on a number of occasions to visit him since then.

    (e)He has a number of medical conditions, including back pain (for which he has had surgery), two knee replacements, prostate issues (which causes incontinence) and hearing loss. 

    (f)He has been attending weekly physiotherapy sessions in Kuala Lumpur for the last two years, as well as attending other doctors’ appointments relating to his medical conditions.

    (g)He is concerned about having to take an eight hour flight between Kuala Lumpur and Australia, which he believes could aggravate his back pain and mobility issues.  He also will also require appropriate precautions for management of incontinence.

    (h)He has undertaken five shorter flights over the last 12 months, ranging in duration from one hour (e.g. to Singapore) and four and a quarter hours (to China).

    (i)The last time he travelled alone by air was over three years ago.  His wife usually accompanies him if he flies.  If he were to travel to Australia she would need to first fly to Kuala Lumpur and then accompany him to Australia.

    (j)If he is required to attend a hearing in person in Melbourne he and his wife will need to stay in a hotel as his daughter cannot accommodate them.  If he is required to attend a hearing in Perth, he and his wife can stay at his wife’s house but he will need to pay for his legal advisors to travel to and be accommodated in Perth.

    (k)He said that he regularly uses audiovisual communication platforms such as Facetime and Zoom to communicate with his family and his solicitors.  In May 2025 he attended a Tribunal directed mediation in this proceeding remotely from Malaysia via MS Teams. 

    (l)Because of his hearing impairment he believes that use of audiovisual equipment may assist him as he is able to turn up the volume which he cannot do in person.

11. The Respondent accepts that the Applicant’s health conditions may cause discomfort but does not believe that they should prevent him from travelling to Australia.  The Respondent outlined concerns about the potential procedural unfairness to which it may be subject if required to conduct its cross-examination of the Applicant remotely.  This is largely due to concerns about the quality and reliability of oral evidence given by audiovisual means when compared to cross-examination conducted in person, particularly where issues of credit of the witness are critical to the dispute.  Further detail of the Respondent’s position is set out below under the consideration of the particular circumstances of this matter.

    WHAT IS THE APPROPRIATE MODE OF HEARING?

12. Several provisions of the ART Act have immediate relevance to the manner in which a hearing of the Tribunal will be conducted, including the mode of hearing:

    (a)Section 9 sets out the ‘objective’ of the Tribunal. It states that the Tribunal must pursue the objective of providing an independent mechanism of review that is (amongst other things) fair and just, ensures that applications to the Tribunal are resolved as quickly and with as little formality and expense as a proper consideration of the matters permits, and is accessible and responsive to the needs of parties to proceedings.

    (b)Subsection 36(1) gives the President of the Tribunal the power to make practice directions in relation to numerous aspects of the Tribunal, including its operations, procedure and conduct of proceedings generally.  The President is also empowered to make practice directions relating to the use of technology that allows a person to participate in a proceeding without being physically present and accessibility of the Tribunal.

    (c)Section 49 provides that the procedure of the Tribunal in a proceeding ‘is within the discretion of the Tribunal’ and in exercising its discretion the Tribunal ‘must have regard to the circumstances of the proceeding.’

    (d)Subsection 50(1) provides that in a proceeding the Tribunal ‘must act with as little formality and technicality as a proper consideration of the matters before the Tribunal permits.’

    (e)Subsection 51(1) requires the Tribunal, as far as practicable, to conduct each proceeding ‘in a way that is accessible for the parties to the proceeding, taking into account the needs of the parties.’  Section 4 provides that ‘accessible’ in relation to the Tribunal includes enabling persons to ‘participate effectively’ in proceedings.  The Note to this definition provides examples of areas where arrangements may be made in relation to accessibility.  This includes premises, facilities and technology, as well as adjustments that can reasonably be made to accommodate a person’s needs.

    (f)Section 52 provides that the Tribunal is not bound by the rules of evidence, but ‘may inform itself on any matter in such manner as it considers appropriate’.

    (g)Subsection 55(1) contains a ‘general rule’ that the Tribunal must ensure that each party to a proceeding is given a reasonable opportunity to present their case, access any information or documents to which the Tribunal proposes to have regard in reaching its decision, and make submissions and adduce evidence.

    (h)Subsection 79(1) empowers the Tribunal to give directions in relation to the proceeding to be followed for a proceeding in the Tribunal.[2]

    [2] Subsections 79(2) and (3) set out certain matters upon which the Tribunal may give directions but the Tribunal is not limited to those matters.

13. Part 5 of the Common Procedures Practice Direction sets out directions about the practice and procedures relating to hearings of applications for review. 

14. Paragraph 5.2 states that the Tribunal may hold a hearing in person, by video conferencing platform, by telephone or by a combination of these modes.

15. Paragraph 5.4 states that there is no entitlement to a particular hearing method.

16. In determining how the hearing will be held, paragraph 5.3 sets out a non-exhaustive list of factors which may be relevant considerations, including:

    (a)Where the parties, and in particular the applicant, are located and their distance from a registry (subparagraph 5.3(a)).

    (b)Any expressed preference from a party and the reasons for that preference (subparagraph 5.3(b)).

    (c)Whether any party or representative has an impairment, or any vulnerabilities, which would make it difficult for them to attend a registry in person or to participate in a hearing by video or by telephone (subparagraph 5.3(c)).

    (d)The nature and complexity of the legal and factual matters to be decided, including the extent to which the Tribunal may need to assess the credibility of oral evidence given by the applicant or a witness and of documentary evidence (subparagraph 5.3(e)).

    (e)The number, nature, location and availability of any witnesses (subparagraph 5.3(f)).

    (f)The nature and volume of the documentary evidence (subparagraph 5.3(g)).[3]

    [3] Subparagraph 5.3(d) covers the situation where there is a history of family violence involving a party and is not relevant to the present circumstances.

17. The Respondent submitted that the Applicant needed to make out ‘a persuasive case’ to be permitted to use and give evidence to the Tribunal via an audiovisual mode.[4] To the extent that the Respondent might be suggesting that the Applicant bears some form of burden of proof in relation to the mode of hearing (and manner in which his evidence is given), the Tribunal does not agree. It is correct that the Applicant bears the burden of proof under section 14ZZK of the Tax Administration Act 1953 (Cth) (‘TAA’) in relation to the substantive issues underlying his application for review.  It is also correct that legislation applying to other forums, such as the Federal Court, requires certain matters to be satisfied before the forum can exercise a discretion for a party to give evidence by audio or video link.[5] 

    [4] Paragraph 12 of the Respondent’s Submissions.  At the interlocutory hearing the Respondent’s senior counsel referred to the reasons given by the Applicant not meeting a ‘threshold.’

    [5] See for example sections 47A and 47C of the Federal Court Act 1976 (Cth).

18. Sections 49 and 79 of the ART Act give the Tribunal the ability to make directions as to whether the Applicant gives his evidence to the Tribunal in person or by audiovisual means. This is not an unfettered discretion and in making any directions the Tribunal must have regard to ‘the circumstances of the proceeding’ as well as the other provisions set out in paragraph 12 above.  The Common Procedures Practice Direction must also be taken into account.  The Tribunal therefore views its task as weighing the reasons given by the parties for and against in person participation by the Applicant, within the boundaries of these statutory provisions and with reference to the Common Procedures Practice Direction.

    CONSIDERATION

19. It is convenient to address the various contentions of the parties by reference to the factors set out in the Common Procedures Practice Direction, as well as considering other circumstances relevant to this particular case.  It is noted that the factors in the Common Procedures Practice Direction are specifically directed to the mode of hearing rather than the narrower question of how an applicant will give their evidence, but the Tribunal believes that similar considerations are relevant here.  It will subsequently be necessary to consider the mode of hearing after determining the manner in which the Applicant gives his evidence.

    Location of parties

20. The Applicant is currently located in Malaysia.  Although there was some debate about whether it was correct to describe the Applicant as ‘resident’ in Malaysia throughout his life (which may form one of the substantive questions before the Tribunal) and the Applicant apparently holds a visa which permits him entry to Australia until October 2026, the Tribunal accepts that the Applicant has not actually been in Australia since around May 2022.

21. The Applicant’s wife is located in Perth and his daughter is located in Melbourne.  The Applicant stated that it is unlikely that his daughter would be able to accommodate him if he came to Australia.

22. The Common Procedures Practice Direction suggests that a relevant consideration is the location of parties, ‘and in particular the applicant.’  Whatever the conclusion reached on the Applicant’s residence for tax law purposes in particular income years, for the purposes of considering the appropriate hearing forum the Tribunal accepts that the Applicant has been located in Malaysia for some years.

23. The Respondent’s case officers and legal representatives are all located in Australia, as are the legal representatives of the Applicant, and are within a reasonable distance of one or more of the Tribunal’s registries.  The Applicant’s counsel told the Tribunal that arrangements could be made for an independent lawyer in Malaysia to assist the Applicant if required.

    Preference of parties

24. The Respondent contends that the substantive hearing of this matter should be in-person, with the parties and their legal representatives physically present preferably in the  Melbourne Registry of the Tribunal, or alternatively in Perth.  The Applicant would be required to give his evidence and be available for cross-examination in-person at the Tribunal registry.  The Respondent agrees that witnesses other than the Applicant could give their evidence by audiovisual means.

25. The Applicant’s primary concern is that he be allowed to give his evidence remotely from Malaysia.  The Applicant’s representative observed that if all four witnesses were to give evidence by audiovisual means, there is no real need for the substantive hearing to be held in-person.   

26. As the preferences of the parties are effectively directly opposed, this is not of great assistance to the Tribunal in determining where the Applicant should give his evidence or the mode of hearing.

    Accessibility needs or impairments or vulnerabilities of a party or representative

27. The Applicant will be 85 years old when a substantive hearing takes place.  The Applicant identified certain medical conditions which he believes will make it difficult for him to travel to Australia, based on the need to sit for lengthy periods in flight.  This includes his back and knee issues, and his prostate condition.  He will need to be accompanied to and from Malaysia. 

28. The Applicant stated that he has a hearing impairment and that technology such as audiovisual platforms may assist him with managing volume control, such that he could hear proceedings better than being in a room with the person speaking.

29. The Respondent said that although the Applicant might be ‘uncomfortable’ due to his medical conditions, these should not preclude him from travelling to Perth or Melbourne.  The Respondent noted that the Applicant had taken flights within Asia over the past 12 months.  The Respondent’s representative told the Tribunal that any such discomfort that might be experienced by the Applicant would be outweighed by the potential procedural unfairness to the Respondent if it is not allowed to cross-examine the Applicant inperson.  The Respondent did not address the Applicant’s hearing impairment.

30. In the circumstances of this Applicant, the Tribunal believes his age and numerous medical conditions are a significant matter, particularly in the context of a request for him to travel from Malaysia to Australia.  The Tribunal acknowledges that it has facilities at its premises to assist participants who have a hearing impairment, however it has a concern for the Applicant’s wellbeing and dignity should he be required to travel and attend one of the Tribunal’s registries in Australia based on his other health matters.  Should the Applicant be required to travel to Australia and the travel adversely affected his health, this might also affect the ability of the hearing to proceed efficiently.

    Nature and complexity of legal and factual issues and extent to which Tribunal may need to assess credibility of Applicant’s evidence

1. The Respondent contends that the nature and complexity of the issues involved in this dispute are such that an in-person hearing is necessary. The matters in dispute are complex, span several years and include allegations by the Respondent of fraud and evasion on the part of the Applicant. The Applicant bears the onus of proof in this matter under section 14ZZK of the TAA.

2. It is not controversial that the Applicant is a central witness to his tax affairs.  Accordingly, the Respondent contends that the Applicant’s credibility is at the heart of the dispute and that the outcome of the Tribunal proceeding is likely to turn on the Tribunal’s assessment of the credibility of the oral evidence given by the Applicant.  In this regard the Respondent submitted that it should not be deprived of ‘the subtle, but often very real advantage of having the applicant in the witness box and in the same room as the cross-examiner in the particular circumstances of this case.’

3. The Respondent provided the Tribunal with references to a number of case authorities[6] where concerns or reservations had been expressed by courts about the effectiveness of video link arrangements for the giving of oral evidence, particularly where issues of credibility arose.  Some of these authorities also suggested video link technology was not appropriate where cross-examination was likely to be lengthy and/or there was a significant volume of documentary evidence.[7]  The Respondent submitted that there was a lack of ‘functional equivalence’ between evidence given by audiovisual means and that given in person, before the judge or Tribunal Member required to make an assessment of that evidence.  Most recently, this was explored in the Court of Criminal Appeal in the New South Wales Supreme Court in R v Walker.[8]  This goes beyond the quality of the technology, or the ability to observe facial expressions to a broader issue of the inability of technology to replicate a courtroom experience, including the engagement between participants in the process.

   [6] The Respondent provided a copy of 19 decisions of the Federal Court, Full Court of the Federal Court, Supreme Court of New South Wales and Supreme Court of Victoria. 

   [7] For example, Commissioner of Taxation v Oswal (No 5) [2015] FCA 1504 at [28] per Gilmour J.

   [8] R v Walker [2025] NSWCCA 62. See for example the extensive discussion of authorities and academic research from paragraph [32] by Dhanji J.

4. The Respondent submitted that another important and related consideration was the ‘nature and solemnity of giving evidence in the Tribunal’.   Absent a genuinely persuasive reason for the giving of evidence by audiovisual means, the Tribunal should be entitled to see evidence tested ‘in a fair and orderly manner’ and this would be unlikely to occur if the Applicant was permitted to give evidence remotely.  The Respondent referred to observations of Buchanan J in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3)[9] about limitations on the effectiveness of evidence given by audiovisual means, suggesting that a witness will be more conscious of their obligations and the gravity of the hearing where they appear in person, which affords reassurance to a cross-examining party.  Less effective cross-examination may prejudice the cross-examining party.  In a similar vein, Lee J in Palmer v McGowan (No 2)[10] suggested that a ‘different dynamic’ may arise between witness and cross-examiner in an online format as compared to an in-person hearing, which may arise from the witness feeling more comfortable in their own surroundings and tone of voice or non-verbal signals may be missed.

   [9]Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152 at [77] to [78].

   [10] Palmer v McGowan (No 2) [2022] FCA 32 at [45] to [46].

5. The Respondent agreed that many of the cases they cited were decided some years ago, and certainly before the COVID-19 pandemic prompted greater use of audiovisual technology.  They acknowledged that favourable views about the use of audiovisual links had been expressed by courts during the pandemic when online hearings were conducted of necessity.  However, the Respondent referred to more recent cases, including R v Walker, which they said suggested a theme of courts returning to pre-COVID-19 concerns about whether evidence given by audiovisual means was as effective as, or functionally equivalent to, traditional hearing formats.

6. The Applicant’s representatives referred the Tribunal to other case authorities in which courts had been far less critical of evidence being given by audiovisual means, noting that some of the earlier critical authorities had been decided without the benefit of exposure to improved modern audiovisual platforms (including MS Teams as now used by the Tribunal). In Auken Animal Husbandry Pty Ltd v 3RD Solution Investment Pty Ltd[11] Stewart J observed that his experience was that well-prepared cross-examination could be just as effective in a virtual setting, including where matters of credit or allegations of fraud were involved.[12]  The Applicant provided an example of a more recent 7 day hearing conducted by the Tribunal where the Tribunal referred to the complexity of the facts and evidence, and adverse findings were able to made by the Tribunal about the credibility of a witness who gave evidence by audiovisual link.[13]

   [11] Auken Animal Husbandry Pty Ltd v 3RD Solution Investment Pty Ltd [2020] FCA 1153 per Stewart J, referring to the decision in Campaign Master (UK) which was cited by the Respondent.

   [12] See also Capic v Ford Motor Company of Australia Limited [2020] FCA 486 at [19]-[20] per Perram J.

   [13] Earlmist Pty Ltd atf Earlmist Unit Trust and Commissioner of Taxation [2023] AATA 978.

7. The Applicant does not believe that the legal and factual issues in dispute are so complex that giving of evidence via an audiovisual link would be a hindrance. On the basis that the Applicant bears the burden of proof under section 14ZZK, the Applicant’s counsel submitted that any adverse consequences of evidence being seen as unreliable are likely to be borne by the Applicant rather than the Respondent.

8. The Applicant also pointed to section 50 of the ART Act which requires the Tribunal to act with as little technicality and formality as a proper consideration of the matters before the Tribunal permits, which they believed was relevant to the Respondent’s concern about a potential lack of ‘solemnity.’

9. Without quoting from each of the authorities provided to the Tribunal by the parties, the Tribunal confirms that it has been made aware by the parties of a range of views held by judicial officers on the reliability of oral evidence given by audiovisual means, particularly where matters of credit are involved.  This includes views on how these matters affect the ability of judge or Tribunal member to assess the evidence.  Even if accepted that there is not perfect equivalence between remote and in-person evidence, it is acknowledged that the ‘balance’ of factors for and against giving evidence by audiovisual means will depend on the relevant context.[14] A balancing of circumstances is what is required by sections 9 and 49 of the ART Act, together with the Common Procedures Practice Direction.

   [14] See R v Walker at [36].

10. As stated above, this interlocutory proceeding is not the forum for making findings in relation to the substantive issues underlying the application for review.  It is appropriate to note that a significant issue is the residence of the Applicant for certain income years, more particularly whether he was a resident of Australia in those income years and potentially whether there is any operation of the Double Tax Agreement between Australia and Malaysia.  The Tribunal agrees that the evidence to be given by the Applicant will be central to the determination of these matters, and that an assessment of the reliability of his evidence will be highly important.  However, this does not of itself dictate an in-person hearing.

11. The Tribunal draws the parties’ attention to another recent decision of the Tribunal in which an application was made for several witnesses resident in China to give their evidence by video link:  FLLH and Commissioner of Taxation.  Deputy President Thompson SC helpfully summarised the current approach of the Tribunal to this issue as follows:[15]

    The Tribunal’s practice is to take evidence by whatever mode is most appropriate in the circumstances of the matter at hand.  Whilst the use of electronic means to take evidence was historically uncommon, and generally not regarded as reliable as in-person evidence, the Covid-19 pandemic changed the practice of Courts and Tribunals throughout Australia, and with it changed opinions on the reliability of hearing evidence by audio-visual link (AVL). Taking evidence and conducting hearings by AVL is a daily occurrence in the Tribunal and affords us great flexibility in the way in which the Tribunal hears cases, throughout the whole of Australia.  Furthermore, the Tribunal is specifically empowered to take evidence outside Australia.

    [15] FLLH and Commissioner of Taxation [2025] ARTA 216 (‘FLLH’) at [6]. ’

12. The FLLH matter involved a three-week hearing concerning amended assessments issued using the ‘asset betterment’ method.  Several witnesses were to give evidence with the assistance of interpreters.  DP Thompson SC described the issues as ‘factually and procedurally complex.’ At this time the Tribunal was operating in the context of the Common Procedures Practice Direction paragraphs set out above.

13. The Tribunal does not believe that the Respondent will be subject to procedural unfairness if required to cross-examine the Applicant by audiovisual means rather than in-person.  Although this case might not be described as ‘simple’ the Tribunal accepts the submissions of the Applicant that the issues involved are not at the highest end of complexity.  The Tribunal is not convinced that the Member presiding over the substantive hearing will have difficulty in assessing the reliability of the Applicant’s evidence by reason of the use of audiovisual link alone. 

14. The Respondent raised a specific concern about the possibility that one of the Applicant’s solicitors might be physically present with the Applicant as the Applicant gave his evidence by audiovisual link which could compromise the evidence giving process.   The Applicant’s representatives indicated that they would be willing to discuss with the Respondents arrangements for an independent lawyer to be retained in Malaysia to provide any practical assistance to the Applicant (such as navigating copies of documentary evidence during cross-examination).

    Number, nature, location and availability of witnesses

15. Other than the Applicant, three witnesses have been identified as potentially being required to give evidence.  One of those witnesses is located in Kuala Lumpur, with the other two (including the Applicant’s former tax agent) based in Perth.  The Respondent has agreed that it is appropriate for those three individuals to give their evidence via audiovisual link (that is, even where they are located in Australia).

16. In relation to the witness located in Malaysia, the Applicant’s representative said that arrangements could be made for this witness to give evidence from the same location in Kuala Lumpur as the Applicant.  Based on that witness having filed only a very brief witness statement, the Respondent said that it may not need to cross-examine this witness or cross-examination would be very limited.

17. These matters do not suggest a need for an in-person hearing, and tend to support an online mode being appropriate.

    Nature and volume of documentary evidence

18. Leaving aside the materials filed in relation to this interlocutory point, the Respondent referred to approximately 2900 pages of evidence having been filed so far in this matter, upon which the Applicant would be cross-examined.  The Respondent indicated that it was likely to require approximately a day and a half to cross-examine the Applicant on his evidence.

19. The Respondent cited authorities in which courts identified potential difficulty for a cross-examination involving significant documentation to gain momentum resulting in unfairness to the cross-examining party.[16]  Again, the Applicant has cited other examples of matters before courts and this Tribunal where witnesses have been cross-examined remotely across several days on volumes of documentary evidence.[17]

    [16] AMP Ltd v Chubb Insurance Australia Ltd (No 2) [2025] NSWSC 789, Bicheno Investments Pty Ltd v Winterbottom (No 2) [2017] NSWSC 413.

    [17] For example Earlmist, Capic.

20. It is the view of this Member that a few thousand pages of evidence in a taxation matter, although not insignificant, is not necessarily unusual.  Had a self-represented applicant been involved, this might have been a factor tending towards an in-person hearing where in-hearing room assistance could be provided with handling of documentary evidence.[18]  However, in this case both parties are well represented and well resourced.

    [18] It is noted that recent practice of the Tribunal is that in-hearing room support is not provided unless special circumstances apply.

    Other matters

21. It is not in dispute that in May 2025 the Applicant participated from Kuala Lumpur in a Tribunal directed mediation process by video link (MS Teams).  One of his Australian legal representatives travelled to Kuala Lumpur to assist him at the mediation.  This supports the Applicant’s contention that he has the capability to participate in Tribunal case events remotely.

22. The Applicant raised the question of the costs he would incur if his wife had to travel to Malaysia to escort him to Australia, he and his wife had to pay for hotels in Melbourne or his legal representatives needed to be accommodated away from Melbourne.  The Respondent does not believe that the incurrence of travel or accommodation costs by the Applicant (whether for himself or his legal team) should be given much weight by the Tribunal.  The Respondent notes that the factual background to this matter involves the transfer of significant funds from Australia to Malaysia by the Applicant.  The Tribunal agrees with the Respondent that issues of cost should not be given significant emphasis in this matter.

23. The Applicant’s representatives identified a concern that if the Applicant was required to travel to Australia to give his evidence in person, the Respondent might seek a Departure Prohibition Order (‘DPO’) preventing the Applicant from returning to Malaysia.  The Applicant referred to discussions in relation to seeking an undertaking from the Respondent that it would not issue a DPO.  As at the date of this interlocutory hearing this matter had not been resolved between the parties.  The Respondent contended that this was not a relevant consideration for the Tribunal to take into account in determining how the Applicant should give his evidence, in part because in his submissions the Applicant had only identified his age and health as the basis for his request to give evidence remotely.  As the Tribunal has decided for reasons unrelated to any DPO that the Applicant should not be required to give evidence in-person in Australia it is not necessary for the Tribunal to consider any potential risk of a DPO being issued.

24. There is another matter the Tribunal wishes to draw to the attention of the parties.  In FLLH Deputy President Thompson SC noted that section 75 of the ART Act specifically empowers the Tribunal to take evidence outside Australia, however an issue arose under the laws of the People’s Republic of China (PRC) as to whether consent of the PRC would be necessary for the witnesses in that matter to be permitted to give their evidence from the PRC (by audiovisual link). DP Thompson SC referred to other cases, including the Auken Animal Husbandry[19] decision cited by the Applicant’s counsel in this proceeding, where this concern has arisen.  DP Thompson SC outlined certain differences between the Tribunal and its procedures which differ from courts and civil litigation, but indicated that based on the novelty and uncertainty of these issues she would not have allowed an audiovisual link to the PRC.  The question in FLLH was ultimately resolved by the witnesses being permitted to give their evidence from Singapore which did not raise a question of Chinese sovereignty but still addressed the difficulties that would have been faced by the witnesses in travelling to Australia.  Logistical issues were left for the Member hearing the substantive matter to address.

    [19] See Auken Animal Husbandry at [33] to [35] where the question was resolved on the basis of the applicant providing evidence that approval from the PRC had been obtained.

25. In the present interlocutory application neither party raised a question or concern about a sovereignty issue arising under Malaysian law or the need for any approval or permission from Malaysian authorities.  Earlier this year the Applicant and his legal representative participated in a Tribunal led mediation by video link from Malaysia, although alternative dispute resolution processes may not raise the same issues.  The Applicant’s Statement indicates that he has managed travel to nearby locations in Asia (including Singapore) over the past 12 months, which might provide scope for an alternative location if this became necessary.

    CONCLUSION

26. The Tribunal will make directions that the Applicant be permitted to give his evidence via video link from Malaysia.  The Tribunal believes that age and medical conditions of the Applicant create risks for him and his ability to present his case which outweigh the concerns relating to potential procedural disadvantage or unfairness to the Respondent from an audiovisual format, noting that the Tribunal is not convinced that any such procedural unfairness would arise. 

27. Further, if all witnesses are to give evidence remotely (including the Applicant) the Tribunal does not believe there are other circumstances which suggest that an in-person hearing is otherwise necessary or appropriate.  The Tribunal will direct that the matter be listed (again) for a hearing by video (MS Teams).

28. Previous listing dates for the hearing have already been changed and with the understanding now that the Applicant will give evidence remotely the parties may wish to seek further directions from the Tribunal as to matters relating to the practical management of the hearing, such as start and finish times on hearing days and the format for preparation of a Tribunal Book or other materials for the hearing.  These matters are more appropriately to be determined by the Member who is constituted to hear the matter.  Should the parties become aware of any impediment to the Applicant giving evidence from Malaysia in particular, they may require further directions from the Tribunal as to an alternative venue in Asia.

Date of hearing:	28 July 2025
Counsel for the Applicant:	Mr Greg Davies KC Ms Angela Lee Mr Andrew Spierings
Solicitors for the Applicant:	Arnold Bloch Leibler
Counsel for the Respondent:	Mr Sam Rosewarne KC Ms Emma Luck
Solicitors for the Respondent:	Norton Rose Fulbright