Incollingo v Tax Practitioners Board

In the matter of Incollingo v Tax Practitioners Board, the applicant, Mr Incollingo, sought judicial review of investigation and sanction decisions made by the Tax Practitioners Board, the respondent. The decisions in question included the investigation into Mr Incollingo's conduct, the determination that contraventions had occurred, and the related sanctions imposed upon him. The crux of the case revolves around the use of protected evidence obtained during cross-examination in a previous court proceeding. This evidence was protected by a certificate issued under section 128 of the Evidence Act 1995 (Cth), which restricted its use or derivative use. Mr Incollingo argued that the use of this protected evidence by the investigating body resulted in an improper exercise of power, tainted the decision-making process, and breached the rules of natural justice and procedural fairness.

The court was tasked with determining whether the use of the protected evidence indeed led to an improper exercise of power and whether the decisions were tainted by this evidence. Additionally, the court had to assess if there was any breach of natural justice and procedural fairness in the decision-making process. The court examined the extent to which the protected evidence was used and compared it with the information available prior to the protected evidence being given. It was noted that the primary basis for the investigation and sanction decisions was information that existed before the protected evidence was provided, and careful steps were taken to prevent the protected evidence from influencing the decision-makers.

The court found that the use of the protected evidence did not result in an improper exercise of power or taint the decision-making process. The court held that the protected evidence only slightly supplemented information that was already available, and this minor addition did not impact the investigation or the sanction decisions. Furthermore, the court concluded that there was no breach of natural justice or procedural fairness. The applicant's challenges to the investigation and sanction decisions were dismissed, and the originating application was dismissed with costs. The court also ordered that the applicant pay the respondent's costs for an interlocutory application made during the proceedings.