FEDERAL COURT OF AUSTRALIA

Hii v Commissioner of Taxation [2019] FCA 1589

ORDERS

THE COURT ORDERS THAT:

1.    On the hearing of the summary judgment application to be heard on 4 March 2020, the applicant may appear by video link (preferentially) or by telephone.

2.    The cost of any such appearance is to be borne by the applicant and tested in advance of the hearing to ensure reliability.

3.    Any such appearance by the applicant is to be conducted from premises and in conditions which ensure that there will be no interruptions to the hearing of the application.

4.    If the applicant chooses to appear by either of these means, or if he chooses to appear in person at the place appointed for the hearing of the application, Ms Moira Helen Clay may attend as his friend and may take notes, may quietly make suggestions, and may give advice, providing that this does not interfere with the orderly conduct of the hearing of the application. The granting of that leave does not extend to Ms Clay’s acting as an advocate for the applicant.

5.    In the event that the applicant appears from abroad by video or telephone link on the hearing of the application, Ms Clay may sit at the Bar Table and may by email make suggestions, and may give advice to the applicant, providing that this does not interfere with the orderly conduct of the hearing of the application.

6.    Save as aforesaid, the applicant’s interlocutory application is dismissed.

7.    At the time appointed for the hearing of the summary judgement application, the applicant is also to show cause, why, if his originating application is dismissed on that application, a consequential vexatious proceedings order ought not be made in respect of him pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) prohibiting him from instituting any further proceedings in the Court by which he seeks to impeach or question the audit decision or subsequent objection decision which are the subject of the originating application, or any assessment to which they relate. This subject is additionally to be addressed in the written submissions for which provision was made by the Court’s order of 17 September 2019.

8.    Costs reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LOGAN J:

1    Sir Yii Ann Hii is in the unusual position of having been afforded the accolade of knighthood (KBE) in one of Her Majesty The Queen’s realms, Papua New Guinea, and also being in debt to Her Majesty’s chief revenue officer, the respondent Commissioner of Taxation, in another of Her realms, Australia. Sir Yii’s Australian taxation indebtedness is substantial, amounting to many millions of dollars. Its origins lie in an assessing conclusion by the Commissioner that Sir Yii was, for the purposes of Australian taxation law, a resident of Australia in a number of income years earlier this century. The general nature of that indebtedness, the background to the formation of the assessing conclusion as to residency and the related assessments were recently summarised by Edelman J in his Honour’s reasons for judgement in respect of the dismissal on 15 May this year of an application brought by Sir Yii in the original jurisdiction of the High Court of Australia: Hii v The Commissioner of Taxation of the Commonwealth of Australia [2019] HCATrans 97. It is convenient for present purposes gratefully to adopt that summary and to incorporate it by reference. In that High Court application, Sir Yii sought against the Commissioner declarations and writs of certiorari and mandamus in relation to the audit decision which had preceded the making of the assessments in question and a later objection decision in respect of those assessments.

2    In fairness to Sir Yii, it must be acknowledged that he has always disputed his Australian residency and the consequential taxation liability. Further, he has never had the benefit of a trial on the merits as to whether the assessments concerned were excessive. That is not to say that he did not once avail himself of the rights of appeal or review against objection decisions in respect of assessments for which Pt IVC of the Taxation Administration Act 1953 (Cth) (TAA) provides. In respect of the income tax assessments, he instituted an appeal against the related objection decision in this Court’s original jurisdiction. In respect of related taxation penalty assessments, he sought the review of the related objection decision by the Administrative Appeals Tribunal (Tribunal).

3    As to the taxation appeal, Collier J was persuaded at an interlocutory stage to make an order for security for costs against Sir Yii: Hii v Commissioner of Taxation (No 3) (2016) 238 FCR 304. That order was not challenged. Sir Yii did not comply with the terms of the order. That resulted in the dismissal of his income tax appeal. A sequel to that dismissal was that Sir Yii decided to withdraw his review application with the result that it was dismissed by the Tribunal. Further detail as to this litigation is to be found in the reasons for judgement of Edelman J. Yet further litigation relating to the assessments, including taxation recovery proceedings in the Supreme Court of Queensland is described by a lawyer (Ms Auld) in the office of the Australian Government Solicitor, who is the solicitor on the record for the Commissioner in the present proceedings.

4    It is not presently necessary to give greater detail as to the prior assessing or litigation history which forms the background to this matter. That is because the question for immediate resolution is the fate of an interlocutory application made by Sir Yii for the following orders:

1.    That the Court permits the Australian registered tax agent of the Applicant, Ms Moira Helen Clay (“Ms Clay”), to assist the Applicant as a “McKenzie friend”:

   a.    in the application for relief under section 398 of the Judiciary Act 1903

   b.    in this interlocutory application and/or

   c.    in any directions or other hearings in the applications.

2.    That the Court permits Ms Clay as a “McKenzie friend” to represent, speak in support of and/or act on behalf of the Applicant:

   a.    for the purposes of this interlocutory application

b.    in the application for relief under section 398 of the Judiciary Act 1903 and/or

   c.    in any directions or other hearings in the applications

as necessary for the proper conduct of these applications, including appearing on behalf of the Applicant, preparing written submissions, and making oral submissions in the applications if required.

3.    Alternatively, if:

a.    the court does not permit Ms Clay to represent, speak in support of and act on behalf of the Applicant in either or both of applications as requested at order 2, and/or

b.    if the Applicant is required for some other reason to appear in the matter,

that the Applicant be permitted to appear before the Court by telephone, or alternatively by audio or video link or other appropriate means, for the proposes of:

   i.    this interlocutory application

   ii.    the application for relief under s 398 of the Judiciary Act 1903 and/or

iii.    for any directions or other hearings in the applications

in accordance with s 478 of the Federal Court Act 1976.

4.    That pursuant to Rule 30.23(g) of the Federal Court Rules 2011 and if the Court considers it appropriate, any hearing be by written submissions and the requirement for oral submissions be dispensed with.

5.    That the Applicant pays the cost of any audio or video link as permitted by the Court.

6.    That the costs of this interlocutory applicant be reserved.

7.    Any other order the court considers appropriate.

[sic, footnote references omitted]

5    Sir Yii has signified a willingness to meet the cost of any video link or telephone conference relating to the making of the orders which he seeks.

6    By his originating application, Sir Yii seeks relief against the Commissioner as follows:

On the grounds stated in the Statement of Claim, the Applicant applies for the following relief under s 39B of the Judiciary Act 1903 (Cth):

1.    A declaration that the decisions of the respondent in the Audit Decisions of 26 June 2012 and/or the Objection Decision of 30 December 2013 that:

a.    the applicant was a resident of Australia under s 6(1) of Income Tax Assessment Act 1936 (ITAA36) in each of the years ending 30th June 2001 to 2009 and/or

b.    the opinion formed by the respondent that there has been an avoidance of tax and that the avoidance is due to evasion pursuant to Item 5 of the table in section 170(1) of the ITAA36

were effectively no decision and/or have no legal effect.

2.    A writ of certiorari be issued to the Commissioner of Taxation of the Commonwealth of Australia (Commissioner) quashing the Audit Decision made on or about 26 June 2012 in which:

a.    it was determined that pursuant to s 6(1) of the ITAA36 the respondent was a resident or resident of Australia in the income years ended 30 June 2001 to 30 June 2009 and/or

b.    the applicant formed the opinion under s 170 of ITAA36 that the actions of the respondent amounted to evasion under item 5 of the table in s 170(1) in the income years ended 30 June 2001 to 2004 and 30 June 2007 to 2009

3.    A writ of certiorari be issued to the Commissioner quashing the Objection Decision made on or about 20 December 2013 in which:

a.    the determination under s 6(1) of ITAA36 that the respondent was a resident in the years ended 30 June 2001 to 30 June 2009 was affirmed and/or

b.    the opinion on evasion under s 170 of ITAA36 in the years ending 30th June 2001 to 2004 and 30th June 2007 to 2009 was affirmed.

4.    An order allowing the objection in full, and/or alternatively a writ of mandamus issue to the Commissioner of Taxation requiring the remaking of the decisions finding residence under s 6(1) of the ITAA36 and/or s 170 of the ITAA36 of the ITAA36 and/or other provisions as relevant for the years ended 30 June 2001 to 30 June 2009 according to law

5.    Consequential orders to the Commission requiring:

a.    the withdrawal of the Notices of Assessment and/or Amended Assessment issued for the income years 2001 to 2009 in consequence of the Audit Decision of 26 June 2012 and/or the Objection Decision of 20 December 2013

b.    the withdrawal of the shortfall penalty assessments issued pursuant to the Notices of Assessment and/or Amended Assessment issued for the income years 2001 to 2009 in consequence of the Audit Decision of 26 June 2012 and/or the Objection Decision of 20 December 2013

c.    the remission of any shortfall or other penalties and/or interest on the amounts assessed pursuant to the Notices of Assessment and/or Amended Assessment issued for the income years 2001 to 2009 in consequence of the Audit Decision of 26 June 2012 and/or the Objection Decision of 20 December 2013

d.    Taking the necessary steps to withdraw and/or notification the Supreme Court of QLD as required to set aside the Judgement Debt against the application in favour of the Commission of Taxation and/or the Commonwealth of Australia, and/or

e.    Taking the necessary steps in Papua New Guinea to discontinue any action seeking the insolvency of the applicant or any other associated matter, and/or to withdraw and/or notify the relevant court of Papua New Guinea of the setting aside of the Judgement Debt in Australia.

6.    A writ of prohibition, or alternatively an injunction issue, restraining the respondent, by himself, his delegates and/or any other authorised officer employed by the Commonwealth of Australia and/or in the office of the respondent, from taking any action based on the Notices of Assessment and/or Amended Assessment issued for the income years 2001 to 2009 in consequence of the decisions of 26 June 2012 and/or 20 December 2013.

7.    The respondent pay the applicant's costs of the application, and such further costs if any of the other matters to date, as the Court thinks fit and can so order.

8.    The respondent pays to the applicant the damages as claimed and/or so much of the damages as claimed as the Court determines is appropriate.

9.    Such further or other orders as the Court considers appropriate.

[sic]

7    The similarity of the relief presently sought with that earlier sought in the original jurisdiction of the High Court will be noted.

8    The related statement of claim filed by Sir Yii runs to some 162 pages. Ms Clay’s name and address appears at the foot of the statement of claim as Sir Yii’s Australian address for service. A noteworthy feature of that statement of claim is that it does rather more than just state the material facts and statutory provisions relied on by Sir Yii, as r 16.02(d) and r 16.02(e) of the Federal Court Rules 2011 (Cth) (Rules) respectively require. Instead, it conflates such statements with argumentative propositions of law.

9    Correctly understood, the term “McKenzie friend” employed by Sir Yii in his interlocutory application refers to a form of assistance to a litigant in person recognised by the Court of Appeal for England and Wales in the case which has come to lend its name to such an assistant, McKenzie v McKenzie [1971] P 33, at 38, 41. In that case, the court referred to a feature of permissible assistance to a litigant in person described long beforehand in this way by Lord Tenterden CJ in Collier v Hicks (1831) 2 B & Ad 663, at 669; 109 ER 1290, at 1292 (Collier v Hicks):

[a]ny person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice

10    It will be immediately apparent from this description and from the interlocutory orders sought by Sir Yii that he is applying for permission that Ms Clay undertake a wider role in the proceedings than that of a “McKenzie friend”. He seeks that she be permitted to undertake an advocacy role for him. Such permission from the court is necessary, because Ms Clay is neither a legal practitioner whose name appears on the roll of practitioners maintained by the Principal Registrar of the High Court of Australia for the purposes of s 55B and s 55C of the Judiciary Act 1903 (Cth) (Judiciary Act) (thereby conferring an entitlement to practise before this court) nor even a legal practitioner at all. Instead, she is a registered tax agent who has undertaken some post-graduate study in taxation and business law (her tertiary qualifications are a Bachelor of Business (Accounting) from RMIT and a Masters of Commerce (Taxation and Business Law) from QUT). In relation to her practising as a registered tax agent, Ms Clay carries professional indemnity insurance. Whether that extends to her undertaking advocacy work is not clear but I am prepared to assume in her favour that it does.

11    As was acknowledged by the Judicial Committee of the Privy Council in O’Toole v Scott [1965] AC 939, at 952, Collier v Hicks also stands for a wider proposition, which is that, subject to any statutory provision to the contrary, both judges and magistrates, as an incident of the power to regulate the judicial proceedings of the court which they are constituting, have a discretion to allow any person to act as an advocate in those proceedings. Were there any doubt in relation to the power of this Court to grant such leave as an incident of the exercise of judicial power, and it was not suggested that there was in submissions, that power would be supplied in any event by s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), such is the breadth of power conferred by that section.

12    No different position in relation to the appearance as an advocate by a layperson for a party is revealed by the Rules. The Rules could not, of course, contradict a position for which an Act provides. But they do not. Materially, r 4.01 provides:

Proceeding by lawyer or in person

(1)    A person may be represented in the Court by a lawyer or may be unrepresented.

Any such lawyer would have to be a person entitled under the Judiciary Act to practise in a court exercising federal jurisdiction. In turn, the Court has power to dispense with the operation of the Rules in the circumstances of a particular case. By such dispensation, the Court might order that a person be permitted to be represented by a person other than a lawyer.

13    These several authorities demonstrate the correctness of the position jointly adopted by Sir Yii and the Commissioner, which was that the Court had power not only to permit Ms Clay to assist Sir Yii as a “McKenzie friend”, as described, but also, by leave, to permit her to undertake an advocacy role for him in the proceedings. The Commissioner did not contest that Ms Clay could be permitted to act as a McKenzie friend, as described, although some practical difficulties which might attend her so acting in the peculiar circumstances of this case were canvassed in the course of submissions. The Commissioner was, however, adamantly opposed to the granting of leave for Ms Clay to act as an advocate for Sir Yii.

14    The practical difficulties in relation to Ms Clay’s assuming the role of a McKenzie friend arise in this way. Sir Yii has an absolute right to be present at, and to appear on his own behalf in, these proceedings. That right is qualified only by an obligation not to behave in such a way as to disrupt the orderly conduct of the proceedings. The latter is of no concern as, in his appearances to date by telephone, Sir Yii has been a model of courtesy, patience and good behaviour, notwithstanding the difficulties arising from an absence of visual cues which can attend the conduct of judicial proceedings by telecommunication to one party.

15    Case management hearings in these proceedings and the hearing of the present interlocutory application have, in relation to participation by Sir Yii, thus far been conducted by telephone. Sir Yii presently lives in Singapore. Though there is no suggestion that he lacks the means so to do, he does not wish to come to Australia in order to appear in person in the proceedings. That is because he apprehends that there is a high likelihood that the Commissioner would make a departure prohibition order under the TAA, based on his taxation liability, were he to enter Australia. Though understandably non-committal, given that there is a discretion to exercise, the Commissioner did not gainsay that apprehension in submissions. The course of litigation to date between Sir Yii and the Commissioner and the large outstanding taxation debt persuades me that Sir Yii’s apprehension is not misplaced.

16    Given this possibility, and lest it be thought to have escaped attention either in submissions or by me, I should record that the Commissioner expressly did not rely upon any public policy consideration arising from the due administration of the TAA as a basis either for resisting leave to Sir Yii appear by telephone or video link or for granting leave to Ms Clay to undertake an advocacy role. That means that it is not necessary in this case to consider whether there is some analogy to be drawn, in terms of relevant considerations, with a person seeking to give evidence from abroad so as to avoid the possibility of a departure prohibition order in the event of coming to Australia to give evidence in person (cf Seymour v Commissioner of Taxation (2016) 241 FCR 361). Neither is it necessary, given the Commissioner’s stance, to consider whether there is some wider public policy consideration inhibiting a grant of leave, perhaps grounded in a refusal to exercise judicial power for the avowed purpose of avoiding a lawful means of securing the collection and recovery of public revenue. In a case where the very foundation of Sir Yii’s case entails a challenge to the basis of the taxation liability the stance adopted by the Commissioner is hardly unfair.

17    At a recent case management hearing, the Commissioner foreshadowed and, to meet that contingency, I made related directions in respect of, an application for summary judgement pursuant to s 31A of the FCA Act or r 26.01 of the Rules. In his submissions, the Commissioner indicated that the application would be based on allegations that the present proceedings were, in light of the issues in, and outcomes of, earlier judicial proceedings, an abuse of process, were an impermissible endeavour to circumvent the conclusive quality which attended a duly certified and tendered notice of assessment in all but Pt IVC of the TAA proceedings and, insofar as the claim for damages was concerned, did not disclose a cause of action known to law.

18    The evidence establishes that Sir Yii has been unable to secure Australian legal representation in these proceedings. It also establishes that he has had the means in the past to obtain advice from solicitors and barristers, including Queen’s Counsel, in relation to his taxation dispute with the Commissioner. He has, though, to date encountered a reticence to act in relation to the case, as found in the originating application and related statement of claim, which he seeks to prosecute against the Commissioner.

19    Sir Yii believes that he would derive assistance in his conduct of the proceedings, including responding to the summary judgement application, if Ms Clay were permitted to act as a McKenzie friend, as described. There is no reason to think that Ms Clay would disrupt the orderly conduct of proceedings. The only difficulty which I apprehend in her so acting is a practical one.

20    As he has been his position to date in relation to case management hearings, the Commissioner does not object to Sir Yii’s appearing by telephone or video link from Singapore on the hearing of the summary judgement application. Given this stance and my experience to date with the case management hearings, I am prepared to permit Sir Yii to appear for himself in this way on the hearing of the summary judgement application. Preferably, that appearance ought to be by video link, because of the benefit of visual as well as audio contact that confers. But I am prepared to allow an appearance by telephone by Sir Yii if needs be. Either with a video or telephone appearance, each party would need to ensure that there was reasonable prior communication of any further documents, including authorities, upon which reliance was to be placed.

21    As with the present application, the choice of not being present in Australia at the hearing of the summary judgement application would be one Sir Yii made for his own reasons. Should Sir Yii chose yet again to appear by video or telephone link, the practical difficulty in relation to Ms Clay’s acting just as a McKenzie friend as described will again be that she is based in Australia. Though I would have no objection to her so acting (or to having so acted), to act as a McKenzie friend, as described, she needs to be able to sit adjacent to Sir Yii.

22    In relation to the summary judgement application, one way in which Ms Clay might act as a McKenzie friend for Sir Yii would be for her to go to Singapore and to sit next to him during a video or telephone link during the hearing of the summary judgement application. The costs entailed in that would be a matter for arrangement as between Sir Yii and Ms Clay.

23    That same procedure could permissibly have been adopted by Sir Yii and Ms Clay in relation to the hearing of the present application but it was not. Ms Clay remained in Australia. I was informed, without any objection, that she was present in court at the time when the present application was heard. Sir Yii did not, by evidence or otherwise, promote any particular alternative way in which she might nonetheless undertake some sort of McKenzie friend role in relation to him on the hearing of his present application. Neither has he promoted any particular such alternative way in relation to the hearing of the summary judgement application.

24    But the potential consequences for Sir Yii in relation to the hearing of the summary judgement application are greater than the hearing of the present application. That being so, and though there is an element of novelty in them, I propose, even though Sir Yii has not sought such directions, to make some directions which might allow Ms Clay remotely to undertake a McKenzie friend role as described without undue disruption of the hearing of the summary judgement application. The thought occurs that and Ms Clay and Sir Yii might, as between themselves, establish a reliable electronic link. Ms Clay might then sit at the Bar table and send to Sir Yii by email any particular suggestions which might commend themselves to her in the course of the hearing of the summary judgement application. I did broach that possibility in the course of the hearing of the present application but that did not elicit a request that it be adopted for the purposes of that hearing. In any event, the more compressed issue at large in relation to the present application and the prior filing of a written submission did not, in my view, require any such direction.

25    Should Ms Clay be permitted also to act as an advocate, in addition to any McKenzie friend role either in relation to the present application or the summary judgement application?

26    As have others before me, eg Mulhern’s Properties Inc v Bank of Queensland [2013] FCA 401 (Flick J), I have derived considerable assistance from a summary of considerations which emerge from relevant authorities, offered by Stein JA (Mason P and Sheller JA agreeing) in Damjanovic v Maley (2002) 55 NSWLR 149 at 162 – 163:

Principles from the cases

[69]    A number of themes or principles run through the cases which are relevant to the exercise of the discretion to grant or refuse leave to an unqualified person to appear on behalf of an unrepresented litigant. They may be briefly summarised as follows:

(a)    The complexity of the case

[70]    Whether the case is one of complexity or minor or straightforward has often been seen as a discretionary factor …

…

(b)    Genuine difficulties of the unrepresented party

[72]    These include matters such as unexpected language difficulties and emergencies. An example of the latter was the absence of legal aid in a criminal appeal …

…

(c)    The unavailability of disciplinary measures and a duty to the court by lay advocates

[74]    Almost every case mentioned these matters as protection for a client when a qualified lawyer represented a party but were protections which were not available where an unqualified lay advocate appears …

[75]    In appropriate cases a legal practitioner may be ordered to pay costs. The position is far from clear in relation to a non-party lay advocate. There may be extreme circumstances where the conduct of a lay advocate could attract an adverse costs order.

[76]    In my opinion, the overall duty of a barrister or solicitor to the court is an important consideration. It is a duty of candour and a practitioner must not knowingly mislead the court. The court is entitled to place reliance on that duty and expect it to be met. The disciplinary codes of the legal profession back up the overriding duty of a practitioner to the court …

[77]    Training, qualifications and experience are also important. This is not to say that there are not incompetent lawyers, including some who seek to practice advocacy. For the most part, the market and the disciplinary codes account for them. But with unqualified and uninsured lay advocates, the court loses the benefit of the overriding duty and clients are at a distinct disadvantage. Apart from endeavouring to ensure that a lay person granted leave to appear obeys the rules, there is little a court can do except, in an appropriate case, withdraw the leave to appear.

[78]    … However, the absence of a disciplinary code and duty to the court underlines the inappropriateness of permitting unqualified persons to appear apart from an exceptional case.

(d)    Protection of the client and the opponent

[79]    Lay advocates are unqualified, unaccredited and uninsured. This places a client at considerable risk … A lay advocate does not owe the same duty to his client as does a lawyer.

[80]    One should also not lose sight of a lawyer's duty to his/her opponent … None of these protections for the system of justice exist with an unqualified lay advocate. …

(e)    Lay advocates in inferior courts and tribunals

[81]    There are indications in some of the cases that Local Courts, given their jurisdiction and large numbers of unrepresented litigants, may be more likely to grant leave to unqualified persons. This is, one assumes, in straightforward uncomplicated matters where the party is under some disability in presenting his/her own case. This may also be the case with some specialist jurisdictions and tribunals.

[82]    The authorities however suggest that higher courts should be very chary at giving leave. …

(f)    The interests of justice

[83]    What runs through all of the authorities as the guiding principle in the exercise of the discretion is the public interest in the attainment of the ends of justice. The public has an interest in the effective, efficient and expeditious disposal of litigation in the courts. As a general rule this can best be achieved by parties employing qualified lawyers.

27    Ultimately, in relation to the granting of leave, there is a discretion to exercise in the circumstances of a particular case for which the over-arching touchstone is what best serves the interests of justice. Further, the principles to which Stein JA adverted are neither exhaustive nor to be applied uncritically as if they were some sort of check list.

28    Yet further, though this Court would undoubtedly fall within the “higher courts” to which Stein JA referred in his summary, it is not, in my view, mere position in a judicial branch hierarchy which is influential in relation to the exercise of the discretion and I respectfully doubt if that is what his Honour intended by its inclusion in the summary. Rather, it is just in the nature of things that it is inherently more likely that issues of legal complexity will be encountered in the higher courts in relation to which, in turn, it is inherently unlikely that either a party or the court will be much assisted, if at all, by permitting a lay advocate to act as an advocate for a party. The present is, on each basis, just such a case.

29    Even so, sometimes the interests of justice are such that, in a particular case, the discretion is exercised to permit such an appearance. For example, more than once over the years, when exercising appellate jurisdiction in this Court in relation to asylum seeker cases brought by a litigants in person not literate in English, I have granted or, if on a Full Court, I have participated in granting leave to allow, one such litigant in person to make submissions on behalf of all family member appellants or respondents in the same interest. Usually, that same interest has been found in the fate of the claim of one litigant in person asylum seeker being determinative of others whose claim is wholly derivative. Such leave has been granted even though there has been little, if any, confidence in the understanding of jurisdictional error concepts or migration law on the part of the person granted leave. Another influential factor in such cases is the often complete absence of such persons taking up an opportunity to file in advance any written outline of submissions, much less to have the benefit of any third party input into the preparation of such submissions. The point of my recalling such prior grants of leave, even in a “higher court” in respect of complex cases is to emphasise that I have approached the question of how to exercise the discretion in this case on the basis that there are no hard and fast rules other than a need to make a value judgement as to what best serves the interests of justice.

30    Nepal v Minister for Immigration and Border Protection (2015) 327 ALR 89 offers a relatively recent example of how an advocacy role for a personal friend with better English literacy skills than a party can arise for consideration. In that case, Edelman J, then a judge of this Court, after canvassing relevant authorities notably also did not adopt a rigid view against allowing a layperson to undertake an advocacy role. The case usefully illustrates why there can be no hard and fast rules against permitting an advocacy role to be undertaken.

31    To my direct perception during the case management hearings, Sir Yii has exhibited a good command of English. He is articulate but his speech in English is strongly accented. Though strongly accented, it is not incomprehensible. He has not sought the assistance of an interpreter. Nor is Ms Clay put forward as an interpreter.

32    Though he is not a legal practitioner, Sir Yii’s written submission in respect of his present interlocutory application is, with respect, also articulate. It displays the fruits of quite some legal research. Inferentially from her references in her affidavits to legal research which she has conducted, Ms Clay has had input into the preparation of this written submission. Perhaps others have, too, but this is not apparent either expressly or inferentially on the evidence.

33    As to the law relating to the granting of leave to appear as an advocate to persons other than legal practitioners entitled to appear as of right, those fruits are indeed palatable. The parties are as one in relation to guiding principles. These I have set out already. The unanimity of approach is not, in my view, misplaced. In relation to acting as an advocate for Sir Yii just in relation to the present application, even that role being opposed by the Commissioner, it seemed to me that assistance as Ms Clay might provide in the interests of justice had already been provided by her input to the written submission in relation to authorities touching upon leave for a layperson to appear as an advocate, and that the interests of justice did not require that she additionally be permitted to appear as an advocate.

34    Viewed in isolation, such helpful apparent input from Ms Clay is a factor tending in favour of granting her leave to undertake an advocacy role on the hearing of the summary judgement application. But there are many countervailing factors.

35    As the bases of the Commissioner’s foreshadowed summary judgement application confirm, Sir Yii’s written submission also rightly anticipates that, “the respondent will raise issues of … res judicata, issue estoppel or Anshun estoppel”. The hearing and determination of Commissioner’s summary judgement application will, necessarily, entail complex issues of revenue law, finality of judgements, estoppel and res judicata and practice and procedure. If she has, as I infer, had input into the written submission, other features of that submission do not give any confidence that the interests of justice, which include but are not confined to those of Sir Yii as a party, will be assisted by permitting Ms Clay to act as an advocate. More particularly, the submission does not give me any confidence at all in relation to Ms Clay’s understanding of the processes, found in Pt IVC of the TAA, for the challenging on the merits of assessments based on conclusions reached by the Commissioner about the residence of a taxpayer, the ramifications of finality in relation to the invocation of those processes and their dismissal, the limited basis upon which the legality of an assessment might be challenged on judicial review and the ramifications of finality in relation to earlier such unsuccessful challenges. In the proceedings in the High Court, Ms Clay made an affidavit which was read in support of the application brought by Sir Yii in which he sought the same relief by way of declaration, writ of certiorari and mandamus and other relief as in the present case. In her affidavit evidence in the present case, Ms Clay acknowledges that a similar application was earlier brought in the High Court but she erroneously characterises the basis upon which Edelman J dismissed those proceedings as being because they were “premature”. That is just not so.

36    Ms Clay has only limited experience of court matters and a post-graduate qualification which has focussed on taxation and business law rather than this in the context of other areas of law and practice. To the extent that she has had input into the written submission, that limited experience and singularity of educational focus is, with respect, manifest. Familiarity with background facts and revenue law cases concerned with residency is one thing, ability to transcend focus on these and to understand and offer relevant oral submissions in relation to “res judicata, issue estoppel or Anshun estoppel” is another. Truly, a little knowledge is a dangerous thing.

37    In the less formal environment of the Administrative Appeals Tribunal, registered tax agents can and do appear for clients at taxation review hearings, particularly in the less complex cases. In turn, lay advocates not infrequently appear for respondents in other areas of the Court’s jurisdiction. But the issues there presented do not entail exploration of the subject of finality in the exercise of judicial power.

38    The Court, the Commissioner and, not least, Sir Yii need, in my view, to be protected from the consequences of ill-informed advocacy, however well-intentioned. With all due respect, that is all that I see in prospect if I were to permit Ms Clay additionally to act as an advocate on the hearing of the summary judgement application. Further, she is neither by training nor ethos imbued with an understanding of an advocate’s duty both to the Court or an opposing counsel. She would not, in undertaking a role as an advocate, be bound by the rules of conduct which apply to members of the Bar. She would, of course, be subject to the law of contempt of court and to the fit and proper person behaviours which govern continued registration as a tax agent. But these would only operate at the outer limits of restrictions as to conduct as an advocate more closely confined by Bar conduct rules and duties to the Court and to opposing counsel.

39    In the context of the hearing of the summary judgment application, Sir Yii is, of course, perfectly entitled to make such submissions on the merits of that application, in writing and orally, as he may be advised. Those submissions, along with those of the Commissioner, will have to be considered on their merits. It is no part of my role in dealing with Sir Yii’s present application to reach any concluded view about the merits, if any, of the summary judgement application which the Commissioner has foreshadowed. Indeed, I have not. However, some advertence has been necessary. That persuades me that I ought also include by way of further direction in relation to the hearing of the summary judgement application, and on the Court’s own initiative, a direction that, in relation to the hearing and determination of the summary judgement application, Sir Yii should show cause, if his originating application is dismissed, why a consequential vexatious proceedings order ought not be made in respect of him pursuant to s 37AO of the FCA Act, prohibiting him from instituting any further proceedings in the Court by which he seeks to impeach or question the assessments in question or any preceding audit decision or subsequent objection decision relating thereto. This subject will need to be addressed in the written submissions for which I have already made provision.

40    I am just not persuaded that either Sir Yii or I or, for that matter, the Commissioner will be assisted by permitting Ms Clay to make oral submissions on his behalf. To the contrary, I apprehend that permitting such oral advocacy may unnecessarily elongate any hearing.

41    In relation to the provision which I have made with respect to the hearing of the summary judgement application for the prior filing of written submissions by the parties, Sir Yii will be free to consult, inter alia, with Ms Clay to such extent, if any, as he desires, as he will with any other advisers. As to other advisers, it may well be prudent for Sir Yii to include as a subject for legal advice advice the prospective merits of the Commissioner’s summary judgement application. For any and all such purposes, he needs no permission from me granting Ms Clay leave to appear as an advocate. The times allowed in the case management directions for by when written submissions must be filed were deliberately framed so as to allow a reasonable, if not generous, time for any such consultations.

42    It only comes to this. Taking into account the matters to which I have referred above, I am not persuaded that it is in the interests of justice to permit Ms Clay to act as an advocate on the hearing of the summary judgement application. Neither was I so persuaded in relation to the present application. To the extent that his application seeks such leave, it must be dismissed. I shall though make directions providing for an appearance by video or telephone by Sir Yii and for the undertaking of a McKenzie friend role by Ms Clay. Given that Edelman J offered to the parties in the case before him the option of dealing with a dismissal application on the papers, I shall also, by direction, extend that opportunity to the parties should each be so advised and jointly agree.

43    It will be necessary to hear a submission from the parties as to the costs of Sir Yii’s application.

Associate:    

Dated:    25 September 2019