Moltoni and Commissioner of Taxation (Taxation)

[2019] AATA 5251

Moltoni and Commissioner of Taxation (Taxation) [2019] AATA 5251 (25 November 2019)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )           No: 2019/4259
TAXATION AND COMMERCIAL DIVISION            )

Re: Peter Moltoni
Applicant

And: Commissioner of Taxation
Respondent

DIRECTION

TRIBUNAL:  Senior Member Damien O’Donovan

DATE OF CORRIGENDUM:            9 December 2019

PLACE:           Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision made on 25 November 2019 as follows:

1. The name of the Applicant on page 1 be changed from ‘TZSX’ to ‘Peter Moltoni’;

2. The Division of the Tribunal on page 1 be changed from ‘General Division’ to ‘Taxation and Commercial Division’; and

3. The File Number on page 1 be changed from ‘2017/4259’ to ‘2019/4259’.

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Senior Member Damien O’Donovan

Division:GENERAL DIVISION

File Number(s):2017/4259      

Re:TZSX  

APPLICANT

Commissioner of TaxationAnd  

RESPONDENT

DECISION

Tribunal:Senior Member D O’Donovan

Date:25 November 2019

Place:Canberra

Pursuant to s 33(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal grants the respondent’s application to have Mr Peter Macks appear by videolink from Adelaide. The Tribunal also directs that on or before 28 November 2019, the parties must give to the Tribunal an agreed hearing timetable which sets out the timeframes for opening submissions, examination in chief, cross examination and closing submissions OR advise the Tribunal that the parties were unable to reach an agreed hearing timetable.

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Senior Member D O’Donovan

TAXATION – PRACTICE AND PROCEDURE – witness availability for hearing – whether or not it is procedurally fair to allow a witness to give evidence via videolink – balance of convenience – interests of parties

Administrative Appeals Tribunal Act 1975 s 33

REASONS FOR DECISION

Senior Member D O'Donovan

25 November 2019

1. The applicant is challenging a Departure Prohibition Order made by the respondent.

2. The matter is listed for hearing on 4 and 5 December 2019 and will be heard in Canberra.

3. The respondent is calling one witness, Peter Macks. The applicant requires him for cross-examination. Mr Macks is based in Adelaide and the respondent has advised that he is unable to attend the hearing in person for the following reasons:

   (a)On 4 December 2019, Mr Macks is scheduled to attend a creditors’ meeting in relation to a company of which he is liquidator and receiver;

   (b)On 5 December 2019, Mr Macks is scheduled to attend an afternoon meeting of a College Board in Adelaide.

4. The respondent made an interlocutory application seeking the leave of the Administrative Appeals Tribunal (Tribunal) to allow Mr Macks to give his evidence by video-link from Adelaide. The applicant opposes that request.

5. The Tribunal has considered this application on the papers.

6. The applicant submits:

   …I will be putting various documents to Mr Macks. The documents are annexures to my Statement of Facts, Issues and Contentions and Witness Statements, all of which Mr Macks states in his Witness Statement he has seen.

   As the Tribunal is aware, I am self-represented. I am not a barrister and am already anxious and daunted by the cross-examination process I need to undertake. Having to cross examine Mr Macks and co-ordinate putting documents to him whilst he is not present would exacerbate the difficulty and stress for me.

   Unlike most taxation appeals, this case is about my liberty and freedom to travel. The evidence of Mr Macks is very relevant to my contentions and the seriousness of the matter should outweigh any inconvenience to Mr Macks.

7. The applicant’s concern is primarily logistical in nature. He does not suggest that it is necessary for me to have the benefit of seeing Mr Mack in person to assist in resolving matters of credit. The concern is that it will be difficult to question Mr Mack about specific documents if he is not present in Canberra and the logistics in doing so will increase the stress of cross-examination.

8. Since receiving the submissions enquiries have been made, on my behalf, of the Tribunal’s Adelaide registry and I have confirmed that a hearing attendant will be available to show Mr Macks relevant documents during the cross examination. Accordingly, I am satisfied that, provided the applicant gives the Tribunal copies of the documents on which he wishes to cross examine in advance of the hearing, there should be no additional difficulty for the applicant in cross-examining over the video link. Some advance preparation will be required but that is not a substantial reason for requiring Mr Macks to fly to Canberra to attend.

9. In making this assessment I have considered the importance of the issue to the applicant and I do not discount that the process will be stressful for him. However, in my assessment, provided there is adequate assistance where the witness is appearing, there will be little difference between the stress experienced by the applicant if the cross-examination is conducted live as opposed to by videolink.

10. In light of that assessment, I am willing to allow Mr Macks to appear by video link.

11. I do, however, expect that Mr Macks will be in a position to attend and answer all of the questions that the applicant and the Tribunal may have in relation to his evidence. Mr Macks schedule on 4 and 5 December 2019, even absent a flight to Canberra, looks extremely tight.

12. Accordingly, I have made directions requiring the parties to confer about a timetable for the conduct of the hearing. Any timetable should allow adequate time for Mr Macks to answer all of the questions the applicant and the Tribunal may have for him and leave time for submissions within the allocated 2 hearing days.

13. If the parties are unable to agree on a timetable I will list the matter for a directions hearing and will be likely to issue a summons to secure Mr Macks’ attendance at the Tribunal from 2.15pm on 4 December 2019.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member D O’Donovan.

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Associate

Dated: 25 November 2019

Applicant:	Self-Represented
Solicitors for the Respondent:	Mr Vincent Tavolaro, Australian Government Solicitor