Seymour and Commissioner of Taxation (Taxation)

The Administrative Appeals Tribunal (AAT) considered an interlocutory application by the Applicants, Mr and Mrs Seymour, who sought to have their evidence taken in Singapore. The dispute arose in the context of a tax review concerning amended assessments totalling approximately $12.5 million. The Applicants had departed Australia in 2010 and were residing overseas, specifically in Mauritius, at the time of the application. The Commissioner of Taxation opposed the application, arguing that the Applicants should attend in Australia to give evidence.

The primary legal issue before the Tribunal was whether it should exercise its discretion under section 40(4) of the *Administrative Appeals Tribunal Act 1975* to take evidence outside Australia. This power allows the Tribunal to exercise its evidence-taking function either inside or outside Australia, subject to any limitations or requirements specified by the Tribunal. A related issue concerned the conditions that could be imposed on the Applicants, specifically regarding the payment of the Tribunal's and the Commissioner's expenses associated with conducting the hearing in Singapore.

Deputy President S E Frost P reasoned that while the Tribunal strives for accessibility, the Applicants' request to have the hearing in Singapore was not a matter of accessibility but rather a desire for the Tribunal to accommodate their chosen location. The Tribunal acknowledged the desirability of having a full evidentiary basis, including oral evidence tested by cross-examination, but noted that the Applicants' refusal to attend in Australia was a choice they made, and the associated risks could not count in their favour. The Tribunal determined that it would exercise its discretion to allow the evidence to be taken in Singapore, but only on the condition that the Applicants met the associated expenses. This was not characterised as an award of costs, but rather as a requirement for the Applicants to cover reasonable out-of-pocket expenses and disbursements that would not otherwise have been incurred.

The Tribunal directed that the Applicants could give oral evidence in Singapore for five days on dates to be fixed by the Tribunal. This direction was made subject to several conditions. The Applicants were required to pay $25,000 into a Tribunal account for the Tribunal's expenses and undertake to pay any further reasonable expenses incurred by the Tribunal. Additionally, they were required to pay $45,000 into an account specified by the Commissioner for the Commissioner's expenses and undertake to pay any further reasonable expenses incurred by the Commissioner, limited to five attendees on behalf of the Commissioner.