Trimcoll Pty Ltd v Deputy Commissioner of Taxation

The appeal concerned a dispute between Trimcoll Pty Ltd and the Deputy Commissioner of Taxation. The core of the disagreement involved the Commissioner's claim for unpaid deductions from prescribed payments, with Trimcoll arguing that the payees had provided valid declarations varying the deductions to nil. The matter came before the Court of Appeal of New South Wales.

The Court was required to determine several legal issues. These included the scope and application of section 167 of the *Evidence Act 1995* (NSW) concerning requests to call witnesses and the admissibility of documents, particularly in relation to "authenticity" and "identity." The Court also had to consider the effect of section 255-50 of the *Tax Administration Act 1953* (Cth) on the burden of proof in tax matters and the adequacy of pleadings. Finally, the Court examined the reasonableness of refusing a request to call witnesses under section 169 of the *Evidence Act 1995* (NSW) and the exercise of the court's discretion in such circumstances.

The Court held that section 167(c) of the *Evidence Act 1995* (NSW) is not limited to exceptions to the hearsay rule and can apply to characteristics of documents that do not contain previous representations. It was also determined that section 255-50 of the *Tax Administration Act 1953* (Cth) does not shift the legal burden of proof, and the Commissioner bore the onus of proving the matters in question, which should have been adequately pleaded. Regarding witness requests, the Court found that the reasonableness of a request under sections 166-169 of the *Evidence Act 1995* (NSW) depends on whether previous representations are likely to be relied upon. In this instance, while a request was made, the ambiguity of the Commissioner's pleadings meant that Trimcoll's refusal to comply was not without reasonable cause, and the primary judge's exercise of discretion miscarried.

The Court of Appeal allowed the appeal, setting aside the order made by the primary judge, and ordered the Commissioner to pay Trimcoll's costs of the appeal.