Federal Court of Australia

Incollingo v Tax Practitioners Board [2023] FCA 878

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed.

2.    Orders 1, 2 and 3 made by Thawley J on 24 December 2021, and the stays made by those orders, be discharged with immediate effect.

3.    The applicant pay the respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    By an originating application brought under s 5(1)(a) and (e) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and s 39B of the Judiciary Act 1903 (Cth), Mr Gerardo Incollingo, a registered tax agent under the Tax Agent Services Act 2009 (Cth) (TAS Act, also referred to in the evidence as the TASA), seeks judicial review of two decisions of the respondent, the Tax Practitioners Board, and related decisions. The two decisions, as defined in the originating application, were:

(a)    the Investigation Decision, being to commence an investigation into Mr Incollingo’s conduct as to whether he had contravened the Code of Professional Conduct contained in Pt 3 of the TAS Act, arising from the creation of backdated false documents and the provision of those documents by him to the Australian Taxation Office (ATO) in response to a notice under the since repealed s 264 of the Income Tax Assessment Act 1936 (Cth) (ITAA 1936); and

(b)    the Sanction Decision, being to impose a sanction upon Mr Incollingo upon finding that such a contravention had taken place, including suspension of his registration as a tax agent under the TAS Act.

2    Mr Incollingo was sent a notice of decision to investigate on 11 May 2021, notifying him of the Investigation Decision made on 11 May 2021 and signed by the Secretary and Chief Executive Officer (CEO) of the Board, Mr Michael O’Neill. The investigation concluded on 11 November 2021. Mr Incollingo was notified of the Sanction Decision on 1 December 2021.

3    The Investigation Decision was made by a Board officer, Mr David Nathan, who was an investigation and enforcement manager to whom Mr O’Neill had on-delegated the power to make that decision. The Sanction Decision was made by a Board Conduct Committee (also referred to in the evidence as a BCC), having a delegation from the Board. That committee comprised three members of the Board who had no prior knowledge of Mr Incollingo. The Conduct Committee did not have any information about him other than the final submission provided to it (including attachments) and what was said about that submission.

4    Mr Incollingo also challenges the investigation continuing when he asked that it be terminated, and the finding that contraventions had taken place leading to the Sanction Decision, which may be described generally as the Related Decisions.

5    The basis for Mr Incollingo’s challenges are an assertion that the Investigation Decision, the Sanction Decision and the Related Decisions were all invalid because each decision had been made by unlawfully using certain information against him. The information in question was obtained as a consequence of parts of the evidence he had given in cross-examination in a proceeding in this Court. The giving of that evidence by Mr Incollingo in cross-examination was protected from certain types of use or derivative use by a statutory protection bestowed by a certificate given to him by the presiding judge under s 128 of the Evidence Act 1995 (Cth) (s 128 certificate).

6    Mr Incollingo relies on what he contends was use, or derivative use, of part of his evidence in cross-examination contrary to the protection given to him by the s 128 certificate. A problem for Mr Incollingo was that the same, or substantially the same, information was available and brought into existence well before he gave oral evidence in cross-examination, including from the affidavit upon which he was cross-examined, and was the primary express basis for both the Investigation Decision and the Sanction Decision. A further problem for him is that careful steps were taken to quarantine information and derivative information covered by the s 128 certificate from the ultimate makers of the Sanction Decision, being the Conduct Committee.

7    For the reasons that follow, each challenge must fail and the originating application must be dismissed with costs. Mr Incollingo must also pay the Board’s costs of an unsuccessful interlocutory application he made, at the hearing of the originating application, for suppression or non-publication orders over the evidence he gave that was protected by the s 128 certificate, and documents that referred to that evidence.

The regime under the Tax Agent Services Act 2009 (Cth) (TAS Act)

8    The TAS Act, by its long title, was enacted to establish the Board and provide for the registration of tax agents and BAS agents and related purposes. Section 2-5 at that time stated:

The object of this Act is to ensure that *tax agent services are provided to the public in accordance with appropriate standards of professional and ethical conduct. This is to be achieved by (among other things):

(a)    establishing a national Board to register tax agents, BAS agents and tax (financial) advisers; and

(b)    introducing a *Code of Professional Conduct for *registered tax agents, BAS agents and tax (financial) advisers; and

(c)    providing for sanctions to discipline registered tax agents, BAS agents and tax (financial) advisers.

(The term “tax (financial) advisers” has since been dispensed with in the TAS Act.)

9    The TAS Act provides for registration of tax agents and BAS agents (Pt 2), a Code of Professional Conduct (Pt 3), termination of registration (Pt 4), civil penalties (Pt 5), and the establishment of the Board, including its functions and powers (Pt 6, comprising Div 60).

10    The Board consists of a Chair and six or more other members, with a number of requirements for membership evidently designed to ensure probity and independence, such as restrictions on outside employment and disclosure of interests: see Subdivision 60-B.

11    The Board has “power to do all things necessary or convenient to be done for or in connection with the performance of its functions”: s 60-20. Section 60-15 describes the Board’s functions as being:

(a)    to administer the system for the registration of *registered tax agents, BAS agents and tax (financial) advisers; and

(b)    to investigate:

(i)    applications for registration; and

(ii)    conduct that may breach this Act; and

(c)    to impose sanctions for non-compliance with the *Code of Professional Conduct; and

(d)    to issue, by legislative instrument, guidelines to assist in achieving the functions mentioned in paragraphs (a), (b) and (c); and

(e)    such other functions as are conferred on the Board by this Act, the regulations or any other law of the Commonwealth; and

(f)    to do anything incidental or conducive to the performance of its functions.

12    Subdivision 60-D provides for committees to be established. In particular, s 60-85 provides that the Board may establish committees to assist it in the performance of its functions and the exercise of its powers.

13    Subdivision 60-E deals with investigations, including the power to request production of documents, and take evidence on oath or affirmation. The ability of the Board to take evidence might have been significant when it came to the scope of the protection afforded to Mr Incollingo by the s 128 certificate, but for the fact that he was not required by the Board to give such evidence. However, that aspect of the Board’s powers remains important in considering the scope of s 128 in relation to the exercise of its powers and functions.

14    A person who is the subject of a notice of decision to investigate, or who is giving evidence, is not excused from compliance upon the ground of self-incrimination, but the information or evidence is not admissible in proceedings except for limited proceedings, such as for an offence arising out of what was provided or given.

15    Section 60-95 provides:

(1)    The Board may investigate:

(a)    your application for registration; or

(b)    any conduct that may breach this Act; or

(c)    other matters prescribed by the regulations.

(2)    The Board must notify you in writing if the Board decides to investigate you. The notice must be given within 2 weeks after the decision is made.

(3)    An investigation is taken to commence on the date of the notice.

(4)    The Board:

(a)    has a discretion as to its procedure; and

(b)    is not bound by the rules of evidence.

16    Section 60-125 provides for the outcomes of investigations. Relevantly:

(a)    s 60-125(2) provides (omitting the note):

If the Board investigates conduct under section 60-95 and finds that the conduct breaches this Act, the Board must either:

(a)    make a decision that no further action will be taken; or

(b)    do one or more of the following:

(i)    impose one or more sanctions under Subdivision 30-B;

(ii)    terminate an entity’s registration under Subdivision 40-A;

(iii)    apply to the *Federal Court for an order for payment of a pecuniary penalty under Subdivision 50-C;

(iv)    apply to the Federal Court for an injunction under section 70-5.

(b)    s 60-125(3) provides:

The Board must make a decision under subsection (2):

(a)    within 6 months after the day on which the investigation is taken to have commenced under subsection 60-95(3); or

(b)    if a longer period is determined by the Board under subsection (4)—within that period.

(c)    s 60-125(7) provides:

If:

(a)    a decision is not made within the period mentioned in paragraph (3)(a) and the Board does not determine a longer period; or

(b)    the Board determines a longer period but does not make a decision within that period;

the Board is taken to have decided to take no further action in relation to the matter that was the subject of investigation.

Delegation of the power to make the Investigation Decision and Sanction Decision

17    Part 7 of the TAS Act, designated “Miscellaneous”, includes s 70-30(1)(b) which allows the Board, subject to certain presently immaterial exceptions or limitations, to delegate all or any of its functions to a Board member, a committee, an APS employee whose services are made available to the Board, or a person engaged by the Board. That power of delegation can include, as it did in this case, the power to make the Investigation Decision, the Sanction Decision and the Related Decisions.

18    The compliance director of the Board, Mr Michael Campbell, swore an affidavit dated 18 August 2022 by which, inter alia, he produces certain instruments of delegations and gives evidence about them which is unchallenged and otherwise uncontroversial. I therefore accept that evidence. This evidence establishes both that the Secretary of the Board (who is also the CEO and a Board member, Mr O’Neill) was delegated the power in s 60-95 to make the Investigation Decision, that he on-delegated that power to Mr Nathan who made that decision, and that the Conduct Committee was delegated all functions and powers under Pts 2, 3, 4 and Subdivision 60-E of the TAS Act. This includes the power in s 60-125 to make findings on an investigation and to impose the sanctions contained in Pts 2, 3 and 4. Therefore, Mr Nathan had power to make the Investigation Decision, and the Conduct Committee had the power to find that there had been a contravention of the TAS Act by Mr Incollingo and the power to make the Sanction Decision.

The facts

19    Advanced Holdings Pty Limited, was one of a group of companies and related entities, including the Demian Group, which were owned or controlled by a property developer, Mr Charbel Demian, also known as Charles or Charlie Demian. Mr Demian was the sole director and shareholder of Advanced Holdings.

20    In August 2014, the ATO commenced an investigation into the Demian Group’s tax affairs. LCI Partners Pty Ltd, the accountant and tax agent for the Demian Group, was also an adviser to Mr Demian in relation to that investigation. Mr Incollingo was a director of LCI Partners.

21    On 13 August 2018, prior to the ATO seeking the freezing order on 17 August 2018 as detailed below, the ATO completed a position paper addressed to Advanced Holdings, explaining its position in relation to that company for the 2013 financial year. This addressed why amended assessments with penalties and interest, as were later unsuccessfully challenged, had issued. This document reflects information that the ATO had obtained well prior to and therefore necessarily independently of any possible protection afforded to Mr Incollingo by the s 128 certificate granted in June 2020. The ATO position paper document relevantly included the following (emphasis added):

[2]    Set out below are the reasons for the audit, the tax issues identified, the material facts and evidence, your views and contentions, and the ATO’s decisions. We have included a calculation of each year’s penalties and interest.

[3]    Lewisham Estate Trust lodged its 2013 income tax return reporting significant income in relation to the sale of properties in Lewisham. A number of issues were identified, specifically, the large cost of sales expenses, interest expenses and losses carried forward from prior years.

[4]    Lewisham Estates Trust was advised in a letter dated 12 August 2014 the Trust had been escalated to an audit for the period from 1 July 2009 to 30 June 2013.

[5]    On 20 July 2016 the scope of the audit was expanded to include the years ending 30 June 2014 and 30 June 2015.

[6]    On the 26th September 2017 Reason for Decision papers were issued for Lewisham Estates Trust and the Trustee for the Demian Trust.

[7]    The net income of the Lewisham Estates Trust was increased for the 2013 financial year as a result of overstated interest expenses, overstated cost of sales expenses and the omission of a property sale during the financial years 1 July 2009 to 30 June 2013.

[8]    Based on information provided during the course of the audit, the ATO was of the view the net income of the Lewisham Estate Trust for the 2013 financial year was to be distributed to its unit holder the Demian Trust. The Demian Trust resolved to distribute its net income to four company beneficiaries.

[9]    Primary notices of assessment were issued as a result of amendments made to increase the income from trust distributions for the following entities:

•    Lewisham Estates Trust

•    The Trustee for the Demian Trust

•    [four other entities listed]

[10]    As a result of conflicting information provided throughout the course of the audit, alternative assessments were also issued the Residuary beneficiaries and Default beneficiaries of the Demian Trust.

[11]    Objections to the notices of assessment were lodged and the Review and Dispute Resolution area upheld the Primary notices of assessment issued with some additional deductions allowed for Lewisham Estates Trust.

[12]    Subsequent to the above notices of assessment issuing, new information has been obtained by the ATO that indicates documents provided to the ATO by LCI Partners during the course of the audit to support the transferring of unit holdings from Advanced Holdings Pty Ltd to Demian Holdings Pty Ltd as Trustee for the Demian Trust, were created and backdated for the purpose of obtaining a tax benefit.

[13]    Based on the new information, Advanced Holdings Pty Ltd will be assessed on the net income of the Lewisham Estates Trust as the initial and sole Unit Holder.

…

ISSUE TWO: FRAUD OR EVASION

[19]    Is the Commissioner of the opinion that the failure to declare trust income in your income tax returns for the 2013 income tax year was a consequence of fraud or evasion, thus allowing the Commissioner to make amendments to your assessments for this income year at any time in accordance with item 5 in the table in subsection 170(1) of the ITAA 1936?

Answer: Yes

[20]    In the Commissioner’s opinion you have failed to include trust distribution income in your 2013 income tax return. Your Tax agent Gerry Incollingo and Charbel Demian knowingly and dishonestly lodged your 2013 income tax return with false and misleading statements. Unit Holding documents were created and backdated then provided to the Commissioner during the course of the audit for Lewisham Estates Trust to substantiate the 2013 income tax return lodged. These documents assisted in the evasion of a tax liability which would otherwise be payable by you. Your Tax agent Gerry Incollingo and Charbel Demian intentionally made false representations, avoided tax, and committed a blameworthy act. The Commissioner considers that their conduct amounts to evasion, and therefore the Commissioner may amend your 2013 income tax assessments at any time.

…

[132]    Based on the above evidence your Tax agent Gerry Incollingo and Charbel Demian potentially colluded to create Unit Holding documents to support the knowingly incorrect lodgement of your 2013 income tax return. These documents were backdated to 15th May 2003, signed by Charbel Demian, and intentionally provided to the ATO to circumvent a tax law which would make you assessable on the net income of the Lewisham Estate Trust as the sole Unit Holder.

[133]    The subsequent creation of these documents were to substantiate a tax structure whereby the Demian Trust as a discretionary trust was able to distribute the net income of the Lewisham Estates Trust to loss entities in order to evade a significant tax liability.

[134]    The Commissioner considers that your conduct amounts to evasion. The above demonstrates that your Tax agent Gerry Incollingo and Charbel Demian have committed a ‘blameworthy act’, as discussed in Denver Chemical.32 This ‘blameworthy act’ was knowingly and dishonestly lodging an incorrect 2013 income tax return then creating Unit Holding documents to substantiate the statements made. Your Tax agent, Gerry Incollingo and Charbel Demian intentionally made false representations, avoided tax, and committed a blameworthy act. The Commissioner considers that their conduct amounts to evasion, and therefore the Commissioner may amend your 2013 income tax assessment at any time.

22    In reaching the above adverse conclusions about Advanced Holdings, Mr Demian, and Mr Incollingo, the ATO position paper also detailed LCI Partners emails, including quoting what was said by Mr Incollingo and an employee in emails about the process of creating the backdated documents, correcting them, and getting them signed by Mr Demian, before Mr Incollingo sent them to the ATO, with him representing in the covering email that they were genuine. The only thing apparently missing from the ATO’s understanding of what had taken place at that time was Mr Incollingo’s explanation for what had happened, including what he had done. As will be seen, his version of what he had done, consistently with what the ATO had already discovered in the course of its investigation, and his asserted state of mind, was also volunteered by him at various stages, including in a 2018 statutory declaration and in a 2019 affidavit, both well before the June 2020 s 128 certificate. As it turned out, he mostly did not deny what had taken place, nor the extent of his involvement. But his relatively benign assertions as to his state of mind accompanying his conduct were not able to be challenged until he was cross-examined on his affidavit on 15 and 16 June 2020.

23    Between 17 and 21 August 2018, Katzmann J heard and determined an ex parte application by the Deputy Commissioner of Taxation for freezing orders against Advanced Holdings, granting those orders: Deputy Commissioner of Taxation v Advanced Holdings Pty Limited [2018] FCA 1263. Of particular relevance were findings made by her Honour concerning Mr Incollingo’s knowing involvement in providing false documents to the ATO in response to notices issued under s 264 of the ITAA 1936.

24    As detailed below, Mr Incollingo’s own affidavit evidence in 2019, and a prior statutory declaration made by him in 2018, both unprotected by the s 128 certificate, make it clear that he was intimately involved in the creation of those false documents, including directing that they be prepared, and directing they be amended to correct certain information, for the purpose of him providing them to the ATO after they had been signed by Mr Demian. The covering email from Mr Incollingo attaching those documents, the relevant portion of which is reproduced below, makes it clear on its face that he was presenting those documents as genuine 2003 documents, not documents that had merely been recreated in 2015 to complete the documentary record.

25    Katzmann J’s judgment at [37]-[58] was ultimately relied upon by the Board in making the decision to commence an investigation into Mr Incollingo’s conduct and formed part of the information placed before the Conduct Committee in making findings of contravention and deciding upon the sanction to be imposed. It is more convenient and efficient, and more informative in light of certain factual disputes between the parties, to reproduce [37]-[58], as well as [1], [33] and [36], of her Honour’s judgment, rather than try to summarise them, the detail being of some importance and warranting careful reading:

[1]    Charbel Demian is a property developer. He is also a director of a number of companies within a group of companies that bears his name (the Demian Group). He is the sole director and shareholder of several of those companies, including Advanced Holdings Pty Ltd (Advanced Holdings), Summer Hill Business Estate Pty Ltd, and Riverland Estate Pty Ltd.

…

[33]    One of the entities in the Demian Group is Lewisham Estate Trust (LET). LET is a fixed unit trust that was settled on 1 May 2003. Advanced Holdings was the initial unit holder of the trust. It had paid $10 for 100 units — all the units in the trust. The corporate trustee of the trust is Lewisham Estate Pty Limited. On 8 July 2014 LET lodged an income tax return for the 2013 financial year. The return described LET’s main business activity as “renting or leasing of non-residential buildings as owner or leaseholder”.

…

[36]    On 17 December 2013 Mr Demian was notified that an audit had begun into his tax affairs and that the audit would cover his related entities, including LET. The audit of the taxation affairs of The Demian Trust and LET began in August 2014.

[37]    On 8 January 2015 the Deputy Commissioner issued Mr Gerardo Incollingo, the principal of LCI Partners, with a notice pursuant to s 264 of the ITAA requiring him “to provide details of the information and documentation relied upon to determine the unit holders reported in the 2013 income tax return in the statement of distribution lodged for [LET]”.

[38]    Mr Incollingo replied to the notice by email dated 10 March 2015. Attached to the email were four documents including:

(1)    a document entitled “Unit Certificate – Lewisham Estate Unit Trust” bearing Mr Demian’s signature and dated 15 May 2003, which purported to certify that Demian Holdings Pty Ltd as trustee of The Demian Trust was the registered holder of 100 units in LET (Unit Certificate); and

(2)    a document entitled “The Fourth Schedule Hereinbefore Referred To Transfer Unit Trust”, also bearing Mr Damien’s signature and dated 15 May 2003, which purported to record the transfer of 100 units in LET from Advanced Holdings to Demian Holdings for consideration of $100 (Transfer Form).

[39]    Mr Demian is the sole director and also the secretary of Demian Holdings Pty Ltd (Demian Holdings), the sole shareholder of which is Hoda Demian.

[40]    The evidence indicates that both these documents were created in 2015, during the course of the Commissioner’s audit and after LCI Partners received the letter from the Deputy Commissioner, and that representations made in them and in Mr Incollingo’s email were accordingly false.

[41]    On 14 December 2017 documents were seized from a number of premises associated with LCI Partners pursuant to search warrants obtained by the Australian Federal Police. Some of the documents obtained under the search warrants related to members of the Demian Group. The Commissioner later issued a notice under s 353-10 of the TAA to the ATO officer who had custody of those documents, and those documents were provided to the ATO’s audit team.

[42]    The documents provided to the audit team included a number of emails passing between employees of LCI Partners and other professional advisors who were retained by the Demian Group in connection with the ATO audit.

[43]    Amongst other things, those emails indicate that the Unit Certificate and the Transfer Form attached to Mr Incollingo’s email of 10 March 2015 were created in February 2015 and backdated to give the appearance that the documents came into existence in May 2003. It will be recalled that those documents were supplied by Mr Incollingo in response to the Deputy Commissioner’s request made in January 2015 for documentation relied upon to determine the unit holders reported in the 2013 income tax return lodged by LET.

[44]    So much is apparent from the emails passing between Steven Amorello, a Senior Accountant at LCI Partners, and Mr Incollingo. It is also apparent from the evidence of Ms Ng, who, earlier this month, reviewed the electronic documents and analysed the metadata, which, as she said, shows “the digital footprint of when a document was created or modified”.

[45]    The evidence also reveals that multiple drafts of both the Unit Certificate and the Transfer Form were created and circulated in February 2015.

[46]    On 19 February 2015, for example, Mr Amorello wrote to Mr Incollingo asking him to look at a Unit Certificate and a Transfer document. The Unit Certificate relevantly read:

This is to certify that DEMIAN HOLDINGS PTY LIMITED A.C.N. 082 158 049 of 29 Sixth Avenue Loftus NSW 2232 is the registered holder of 100 Unit(s) of $1.00 in THE DEMIAN UNIT TRUST …1 [footnote not reproduced in the judgment]

[47]    These documents are unsigned.

[48]    Ms Ng’s evidence establishes that this document was created on 18 and 19 February 2015. Different versions of the document were created on 24 February 2015, when the address was changed to “2-20 Carnarvon Street, Silverwater NSW 2125” (version 2), at 11.08 am on 27 February 2015 when “2-20” became “2/24” and the signatures of Mr Demian and Mr David Smedley (as witness), together with the date 15 May 2003 (in an apparently different hand), were added (version 3), and at 12.46 pm when the words “ATF The Demian Trust” were inserted and “Lewisham Estate Unit Trust” was substituted as the trust (version 4). This was the Unit Certificate attached to Mr Amorello’s email of 10 March 2015. It relevantly read:

This is to certify that DEMIAN HOLDINGS PTY LIMITED A.C.N. 082 158 049 ATF The Demian Trust of 2/24 Carnarvon Street, Silverwater NSW 2125 is the registered holder of 100 Unit(s) of $1.00 in LEWISHAM ESTATE UNIT TRUST …

[49]    Ms Ng’s evidence is that this document was created on 27 February 2015.

[50]    The other document Mr Amorello forwarded to Mr Incollingo was a form of transfer dated 15 May 2003 providing for the transfer to Advanced Holdings by Mr Demian of “100 units of the Company constituted by the Trust Deed dated the 15th day of May 2003 and made between Advanced Holdings Pty Ltd and Demian Holdings Pty Ltd”. Ms Ng’s evidence is that this document was created on 19 February 2015. A later version adding “Demian Holdings Pty Ltd” as transferor was created on 24 February 2015 (version 2). The signatures of Mr Demian and Mr Smedley appear on another version created at 11.08 am on 27 February 2015 (version 3). The final version produced to the Deputy Commissioner on 10 March 2015 swapped the names of the transferor and transferee (version 4). Ms Ng deposed that this version was created at 12.46 pm on 27 February 2015.

[51]    At 2.27pm on 24 February Mr Incollingo emailed Mr Amorello asking him:

How is the ATO and Charlie going?

Is the paperwork ready to send?

[52]    I infer from the context and a number of other documents mentioned in Mr Morelande’s affidavit that “Charlie” is Charbel Demian.

[53]    Mr Amorello replied:

I’ve been trying to contact Charlie but he hasn’t answered or got back to me.

I’m chasing the business address from 2003 financial year … and then I can send over to you to review.

[54]    Seven minutes later Mr Incollingo replied, telling Mr Amorello that he needed to send a text message “telling him that it is URGENT!!”

[55]    At 3.59 pm Mr Amorello wrote to Mr Incollingo:

Find attached the Unit Holders documents for your review…

I confirmed the business address with Charlie.

Let me know if you need anything else.

[56]    At 10.37 am on 26 February 2015 Mr Amorello emailed Mr Incollingo advising him that he had contacted “Charlie” the previous day “for signing of the Unit Holder documents”, that he said he would come past the office to sign, but that he did not turn up. Mr Amorello lamented that he had tried to contact “Charlie” twice that day but said that he had not received a response.

[57]    At 10.57 am on 27 February 2015 Mr Amorello forwarded to Mr Incollingo a number of documents including version 3 of the Unit Certificate and the Transfer Form, both bearing the signatures of Mr Demian and Mr Smedley.

[58]    The final versions of the Unit Certificate and Transfer Form that were produced to the Deputy Commissioner on 10 March 2015 were scanned at 12.55 pm on 27 February 2015 and emailed to Mr Incollingo the same day.

26    For completeness, it should be noted that the freezing orders made by Katzmann J as duty judge on 21 August 2018 were set aside three days later on 24 August 2018 by Davies J as the subsequent docket judge. However, Mr Incollingo did not submit to this Court that Katzmann J’s judgment could not be relied upon by the Conduct Committee. If any such submission was intended to be made or implied, I reject it, not least because, subject to one qualifying issue raised as to how far her Honour went, which I address and reject below, it is substantially the same as the description given later by Mr Incollingo in a statutory declaration dated 18 October 2018, and in an affidavit dated 23 October 2019.

27    On 15 and 16 June 2020, just under two years after the hearing before Katzmann J on 17 August 2018, and delivery of her Honour’s judgment on 21 August 2018, Mr Incollingo gave evidence as a witness during the course of a three-day hearing before Davies J. Her Honour was sitting in a dual capacity as a judge of this Court and as a Deputy President of the Administrative Appeals Tribunal.

28    There were 29 related proceedings heard by Davies J in that dual capacity, brought by companies and individuals associated with Mr Demian, challenging the asserted excessiveness of income tax assessments and amended assessments under Pt IVC of the Taxation Administration Act 1953 (Cth).

29    In October 2019, well over a year after the hearing before Katzmann J and the delivery of her Honour’s judgment, and well before the June 2020 hearing before Davies J, Mr Incollingo swore an affidavit in the proceedings before Davies J dated 23 October 2019. That affidavit annexed his 10 March 2015 email to the ATO in response to the notice issued by a Deputy Commissioner of Taxation under s 264 of the ITAA 1936, and the two backdated false documents that had been attached to that email. The relevant portions of Mr Incollingo’s email are as follows:

…

I enclose the following for your attention:

1.    Copy of Original Unit Trust Deed for Lewisham Estates Pty Ltd ATF Lewisham Estate Trust dated 1/5/2003 showing the original Unit Holder as Advanced Holdings Pty Ltd.

2.    Copy of Unit Trust transfer of Units Dated 15/5/2003 showing transfer from Advanced Holdings Pty Ltd to Demian Holdings Pty Ltd ATF The Demian Trust. I also enclose a copy of the Unit Holders Certificate.

3.    …

30    There can be no doubt that Mr Incollingo was presenting those two documents to the ATO as being genuine, when he could not possibly have believed that they were due to his involvement in their creation in March 2015. As the passages from Katzmann J’s judgment reproduced above make clear, and as the ATO had already discovered by reference to emails sent by and received by Mr Incollingo, those documents had been prepared at his direction, with amendments sought by him to initial drafts, with the final versions being sent by email as reproduced above to the ATO. The documents provided were backdated, and falsely represented on their face that they had been created well over a decade earlier in 2003. It bears repeating that Mr Incollingo knew that the documents, dated 1 and 15 May 2003, were signed by Mr Demian in 2015. He must have known they were forgeries, and the above email reference to attaching a copy of the “original” trust deed, which he knew it was not, is enough to support a clear inference that he knew it was a forgery.

31    Mr Incollingo’s affidavit dated 23 October 2019 deposed to the s 264 notice and his response to it. It substantially replicated his statutory declaration made a year earlier, dated 16 October 2018. It was that affidavit he was cross-examined upon during the June 2020 hearing before Davies J. It has not been suggested that anything in that affidavit was ever the subject of any protection from, or other restriction on, its use by the Board in its investigation, or by the Conduct Committee in its adjudication on contravention and later on the sanction to be imposed.

32    An issue of self-incrimination arose in the course of the hearing before Davies J as to the evidence Mr Incollingo would give in cross-examination on his affidavit. Mr Incollingo sought a certificate under s 128 of the Evidence Act so that any incriminating evidence he gave in cross-examination on his affidavit and any re-examination could not be used against him. On 15 June 2020, Davies J made orders granting the certificate sought in carefully confined terms, later replicated in a formal s 128 certificate issued on 22 June 2020 as follows (emphasis in original):

This Court certifies under section 128 of the Evidence Act 1995 (Cth) (the Act) that any evidence given by Mr Gerardo Incollingo while under cross-examination or re-examination in this proceeding (and related proceedings being heard concurrently (Annexure “A”)) relating to the issue of backdating documents and the provision of backdated documents to the Australian Taxation Office is evidence to which subsection 128(7) of the Act applies.

33    As noted above, any oral evidence that Mr Incollingo gave in cross-examination or re-examination with the protection of the s 128 certificate, relating to the issue of backdating documents and the provision of backdated documents to the ATO, but only in relation to that evidence, was not able to be used against him, per s 128(7), in “any proceeding in an Australian Court”. Later in these reasons, I consider the question of what is covered by that phrase by reference to the competing arguments advanced. I also consider the reach of s 128(7)(b) of the Evidence Act which extends the protection to “evidence of any information, document or thing obtained as a direct or indirect consequence” of that aspect of Mr Incollingo’s evidence. Any question of derivative use is ordinarily a question of fact.

34    On 15 October 2020, Davies J published her Honour’s judgment on the Federal Court side of the various related proceedings: Advanced Holdings Pty Limited as trustee for The Demian Trust v Commissioner of Taxation [2020] FCA 1479. In that judgment, her Honour referred to the giving of the s 128 certificate, and to the evidence that Mr Incollingo gave about the creation of the false documents and their provision to the ATO, and to other conduct: see [104]-[123], especially at [109]-[112]. The most substantial paragraph dealing with the evidence that Mr Incollingo gave in relation to the false documents was [112]. It was, with minor differences detailed below, substantially the same as his statutory declaration dated 16 October 2018 and his affidavit dated 23 October 2019. The s 128 certificate and the protection it bestowed did not extend to either Mr Incollingo’s affidavit or his statutory declaration, from which almost all of that paragraph was able to be derived, and as I later find was mostly so derived.

35    Davies J’s judgment, while addressing Mr Incollingo’s conduct, including conduct not covered by the s 128 certificate, was principally focused on the conduct of Mr Demian and the taxpayer entities and related entities he was associated with. In particular, this included the issue of whether Advanced Holdings had ever been validly appointed as trustee of the Demian Trust in 2003 (on the purported date of the backdated trust deed), with her Honour finding that it had not. This finding meant that the false documents that Mr Incollingo provided to the ATO were shown not just to be false as to their creation including backdating, but also as to the events they purported to record, which was not covered by the s 128 certificate. That conclusion went beyond anything later found by the Conduct Committee, which is readily explicable because that evidence was not before it.

36    Justice Davies made reference in her Honour’s judgment to the evidence Mr Incollingo gave in cross-examination, which was rejected by her Honour, as to later not providing other documents to the ATO. This was not concerned with the backdating of documents or providing them to the ATO, and so was not covered by the s 128 certificate. The issue of the backdated documents furnished by Mr Incollingo to the ATO formed but a part of the matrix of issues and evidence before her Honour.

37    It is fair to say that Davies J did not find Mr Incollingo to be an impressive witness, not just about his conduct in early 2015 in relation to the false documents being created, but also his later conduct in 2017 which had nothing to do with the prior conduct of backdating, and so was not covered by the s 128 certificate. Genuine documents provided to the ATO in 2017 by the then solicitor for Advanced Holdings exposed the backdating. Those correct documents were not brought to the ATO’s attention by Mr Incollingo, with his answers to the questions in cross-examination being about them not being covered by the s 128 certificate. However, her Honour’s views about all of that, and the fact of and content of Mr Incollingo’s cross-examination on both the 2015 events (use of which was protected by s 128(7) and the 2017 events (use of which was not protected by s 128(7)), was not before the Conduct Committee in finding that a contravention of the TAS Act had taken place, nor in imposing sanctions upon Mr Incollingo.

38    Justice Davies’ judgment has never been suppressed or redacted, although that was sought at the hearing of this proceeding and rejected. Nor has there been any restriction placed on access to the transcript of the hearing before her Honour, including the transcription of Mr Incollingo’s oral evidence given under the protection of the s 128 certificate.

39    The only lasting effect of the s 128 certificate is therefore a restriction on the use of a limited part of Mr Incollingo’s oral evidence in cross-examination (or evidence re-examination), confined to such evidence “relating to the issue of backdating documents and the provision of backdated documents to the Australian Taxation Office”, or of any information, document or thing obtained as a direct or indirect consequence of that evidence, in any proceeding in an Australian Court, as defined. While it is agreed between the parties that this definition extends to the Board insofar as it is able to take evidence, and to a Conduct Committee in conducting an adjudication on contravention or sanction, there is a live issue between the parties as to whether or not that extends to any other aspect of the Board’s activities.

40    Of course, the s 128 certificate, issued on 22 June 2020, cannot and does not have any impact on the evidence before Katzmann J or the conclusions reached by her Honour as set out in her 21 August 2018 judgment, especially the portions reproduced above.

41    Justice Davies’ judgment received some media coverage and apparently came to the attention of the Board. On 5 November 2020, Mr O’Neill sent an email to a senior officer employed by the Board, referring to Davies J’s judgment and in particular to [108]-[109], describing it as referring to a tax practitioner backdating documents for a taxpayer. That was not entirely accurate, because, as made clear above, rather than Mr Incollingo creating the false documents himself, he caused an employee to do so, and had corrections made, before they were signed by Mr Demian, and then he (Mr Incollingo) provided them to the ATO. There is no material distinction between Mr Incollingo creating those documents himself, and directing and overseeing an employee doing so.

42    Mr O’Neill noted in his 5 November 2020 email that the taxpayer was on a list of tax crime cases that the Board was awaiting further detail on, and asked that in the interim the tax practitioner (that is, Mr Incollingo) and his firm be profiled. Mr O’Neill’s email also stated that it was important to understand the impact of the s 128 certificate issued to Mr Incollingo regarding his testimony so that the Board only acted upon admissible evidence. This caution and concern is of some importance when it comes to the later impugned decision made by Mr Nathan on behalf of the Board to commence the investigation of Mr Incollingo under, and regulated by, the TAS Act: that is, the formal Investigation Decision.

43    A chain of emails ensued which resulted in the profile sought by Mr O’Neill being generated and the matter being allocated to an investigator on about 9 November 2020. As detailed below, that investigator was actively involved in the matter, including from the formal commencement of an investigation on 11 May 2021, until October 2021. Mr Campbell stepped in from October 2021 until the Sanction Decision was made on 1 December 2021. That prior investigator did not attend any meeting of the Conduct Committee relating to Mr Incollingo, nor perform any related functions such as taking minutes.

44    On 11 May 2021, Mr Incollingo was sent an email by the investigator to whom this matter had been allocated, attaching a notice of investigation signed by Mr O’Neill in his capacity as the Secretary and CEO of the Board, and a copy of Katzmann J’s judgment. This was the formal notification of the commencement of the investigation, constituting the Investigation Decision made by Mr Nathan and challenged by Mr Incollingo.

45    The notice of investigation stated:

On 11 May 2021, the Tax Practitioners Board (the Board) commenced an investigation under Subdivision 60-E of the Tax Agent Services Act 2009 (the TASA) about your conduct that may have breached the TASA.

The conduct relates to your alleged failure to comply with the following provisions of the Code of Professional Conduct (Code) in the TASA:

Code provisions

•    Subsection 30-10(01) Code breach – act honestly and with integrity

Eligibility provisions

•    In addition, your conduct may have resulted in you ceasing to meet the registration requirement set out in the TASA under section 20-45(c)

S30-10(1) of the code

On the 21 August 2018 in a federal court judgment the Honourable Justice Katzmann found that you, Mr Incollingo, had provided false information to the ATO and were involved in the creation of false documents to provide this information.

In the case of the Commissioner of Taxation v Advanced Holdings Pty Ltd [2018] FCA 1263 in the Reasons For Judgment Justice Katzmann notes your behaviour between paragraphs 37 to 58

In particular Justice Katzmann notes;

1.    On 8 January 2015 the Deputy Commissioner issued Mr Gerardo Incollingo, the principal of LCI Partners, with a notice pursuant to s 264 of the ITAA requiring him to provide details of the information and documentation relied upon to determine the unit holders reported in the 2013 income tax return in the statement of distribution lodged for [LET]

2.    That “Mr Incollingo replied to the notice by email dated 10 March 2015. Attached to the email were four documents including a document entitled “Unit Certificate –Lewisham Estate Unit Trust” and “The Fourth Schedule Hereinbefore Referred To Transfer Unit Trust”

3.    The evidence indicates that both these documents were created in 2015, during the course of the Commissioner’s audit and after LCI Partners (of which you were the principal) received the letter from the Deputy Commissioner, and that representations made in them and in Mr Incollingo’s email were accordingly false.

4.    That documents were seized on the 14 December 2017 from premises associated with LCI Partners which included a number of emails.

5.    That, amongst other things, those emails indicate that the Unit Certificate and the Transfer Form attached to Mr Incollingo’s email of 10 March 2015 were created in February 2015 and backdated to give the appearance that the documents came into existence in May 2003.

6.    Emails passing between Steven Amorello, a Senior Accountant at LCI Partners, and Mr Incollingo reveals that multiple drafts of both the Unit Certificate and the Transfer Form were created and circulated in February 2015.

7.    Further emails show that the documents provided to the ATO had not been signed as late as 26 February 2015 in particular in paragraph 56 of the Reasons for Judgment states “At 10.37 am on 26 February 2015 Mr Amorello emailed Mr Incollingo advising him that he had contacted “Charlie” the previous day “for signing of the Unit Holder documents”, that he said he would come past the office to sign, but that he did not turn up. Mr Amorello lamented that he had tried to contact “Charlie” twice that day but said that he had not received a response”

8.    Subsequently on the 27 February 2015 Mr Amorello forwarded to Mr Incollingo a number of documents including version 3 of the Unit Certificate and the Transfer Form, both bearing the signatures of Mr Demian and Mr Smedley. Final versions of the Unit Certificate and Transfer Form that were produced to the Deputy Commissioner on 10 March 2015.

The above evidence and emails show that you were clearly aware, and participated in, creating the false documentation provided to the ATO in response to the ATO request regarding an audit on Mr Demian’s tax affairs and related entities.

What you must do

You must provide a written response to the Board addressing

1.    Why you should be considered a fit and proper person in light of the behaviour described in this letter and attachments?

2.    Why you engaged in conduct that resulted in Justice Katzmann finding you had provided false information and helped falsify documents provided to the ATO?

3.    Why you have not informed the Board of the decision made by Justice Katzmann regarding your behaviour.

Your written response sent by email to the contact details listed above is required by 25 May 2021. We remind you that the Code of Professional Conduct requires you to respond to requests from the Board in a timely, responsible and reasonable manner.

We must complete our investigation within six months from the date of this notice. If for reasons beyond our control we cannot do this, we will notify you of any revised timeframe.

46    Mr Incollingo takes issue with the characterisation in the notice of investigation of Katzmann J’s judgment as constituting any finding that he had “helped falsify documents provided to the ATO”: see [2] in the passage from the notice reproduced immediately above under the heading “What you must do”. That contention is correct only if this impugned sentence is read to mean that there was no actual overt finding made by Katzmann J of such help being given by Mr Incollingo directly in the act of actually creating the false documents. However, I consider that is too literal and limited a way to read her Honour’s reasons, and especially the scope of the word “helped”.

47    Justice Katzmann was making findings of fact, ex parte, on the evidence before her. The substance of those factual findings included a clear enough set of conclusions to the effect that Mr Incollingo had helped in the process of preparing and providing falsified documents, as opposed to merely forwarding on the end product of such a process carried out without his knowledge or awareness. Her Honour was clearly of the view that he was fully aware that falsified documents were being prepared under his direction for the purpose of giving them to the ATO, and had provided a substantial input into that process. That included his interactions with Mr Steven Amorello, a senior accountant at LCI Partners (of which firm Mr Incollingo was a director), as set out by her Honour. The word “helped” should be given its ordinary corresponding meaning to the verb “help”, being “to furnish aid to; contribute strength or means to; assist in doing”: Macquarie Dictionary (8th ed, 2020). In that ordinary sense, the findings of fact necessarily included a finding in substance that he had indeed helped to falsify documents provided to the ATO. I therefore reject Mr Incollingo’s submission to the contrary.

48    On 24 May 2021, Mr Incollingo sent an email in response to the 11 May 2021 notice of investigation reproduced above, attaching a letter addressing the three questions that he was asked to answer, and providing an explanation for what had taken place. In particular, in relation to the obligation imposed upon tax agents by s 30-10(1) of the TAS Act to act honestly and with integrity, he did not agree that he had contravened that section and said that he had always acted with honesty and integrity as a tax agent. He sought to explain his conduct, rather than deny the substance of what he had done. He made no reference to his evidence before Davies J, nor to the s 128 certificate. He enclosed his 10-page statutory declaration made much earlier, dated 16 October 2018, a year before his affidavit dated 23 October 2019. That statutory declaration included details as to how he had directed that the two documents in question should be created and backdated, further supporting the conclusion identified in the preceding paragraph as having effectively been reached by Katzmann J, that he had helped to falsify the documents that he provided to the ATO.

49    Initially, the investigation by the Board placed some reliance on the Davies J judgment (but not the cross-examination evidence of Mr Incollingo itself), and several case plans were developed over the following months. ATO documents about Mr Incollingo in connection with the Federal Court proceedings before Davies J were obtained by Mr Campbell on 25 August 2021, which included Mr Incollingo’s affidavit and the transcripts of his evidence in that proceeding, being material protected from use or derivative use as proscribed by s 128(7) of the Evidence Act.

50    On 30 September 2021, Mr Incollingo was sent a notice of alleged failure to comply with the TAS Act, including a notice of potential sanctions, again signed by Mr O’Neill in his capacity as the Secretary and CEO of the Board.

51    Enclosed with that notice was a submission to the Conduct Committee dated 30 September 2021, along with a notice of possible outcomes. The submission had 25 attachments, including copies of the transcripts of Mr Incollingo’s evidence on 15 and 16 June 2020, and a copy of Davies J’s judgment, and contained some limited commentary on that material. However, the submission in that form was never provided to the Conduct Committee. In context, it is plain enough that the submission provided to Mr Incollingo ended up being only a draft, especially in light of what followed, which resulted in that version of the submission never being provided to the Conduct Committee. That is, Mr Incollingo was given an opportunity to comment on what was proposed to be provided to the Conduct Committee, being a conventional provision of procedural fairness, which he took advantage of.

52    Mr Incollingo places particular reliance upon [18] of that ultimately draft submission, which stated (emphasis added to the aspect that is particularly relied upon):

On 15 October 2020, the Federal Court of Australia handed down its decision in Advanced Holdings Pty Limited as trustee for The Demian Trust v Commissioner of Taxation [2020] FCA 1479. Advanced Holdings was assessed to the net income of the Lewisham Estates Trust. Paragraph 109 of that decision notes the backdating of documents and the board commenced inquiries as a result.

53    Mr Incollingo’s case is that the bold part of [18] of the draft submission, reproduced above, is supported by what appeared in and was annexed to that draft submission. This included annexing Davies J’s judgment, reproducing and referring to parts of his evidence in cross-examination before her Honour, and referring both generally and specifically to various allegations as being based on the evidence referred to in the submission which included details of the evidence in cross-examination.

54    Mr Incollingo reads too much into the words “as a result”. A media report of the Davies J judgment had triggered the commencement of a process to look into what Mr Incollingo had done in relation to backdating documents provided to the ATO. I can see nothing wrong with that, especially in light of the reasons that follow. To the contrary, it is difficult to see how the Board would have been properly discharging its responsibilities simply to have ignored this information. The live issue is what information was in fact used to make the Investigation Decision and the Conduct Decision, and collaterally the Related Decisions, and whether that was proven to have entailed anything that was contrary to the protection bestowed by the s 128 certificate via s 128(7) of the Evidence Act.

55    Mr Incollingo made representations to the Board via his solicitors, dated 15 October 2021, objecting to the inclusion and use of the transcripts of his evidence in cross-examination and of the Davies J’s judgment in the draft submission to the Conduct Committee, by reason of the s 128 certificate. Mr Incollingo also raised arguments of the kind advanced in support of this application for review based upon s 128(7) of the Evidence Act, asserting that it was not possible to separate the material covered by the s 128 certificate from the rest of the material, and that the investigation should be terminated. That aspect of his submissions was not accepted by the Board, which instead took other steps to address the concerns that he had raised.

56    After legal advice was obtained about the effect of the s 128 certificate, following the representations made by Mr Incollingo’s solicitors, a conscious decision was made to revise the submission and rely only upon the earlier decision of Katzmann J, by reference to her Honour’s findings of fact at [37]-[48] that the backdated documents had been falsified, rather than the later decision of Davies J as well.

57    On 2 November 2021, Mr Campbell advised Mr Incollingo’s solicitor by email that the submission previously provided to Mr Incollingo referring to the s 128 material had not been provided to the Conduct Committee, and that the committee comprised independent decision-makers with no prior knowledge of the matter. The email attached a revised submission to the Conduct Committee, advising that the s 128 certificate material had been excised (which is addressed in more detail below). A link to the revised attachments was sent the next day.

58    Further communications took place between the Board and Mr Incollingo’s solicitors, culminating in a detailed submission being furnished on his behalf on 10 November 2021, concerning the backdating of the two documents and how that should be regarded by the Conduct Committee.

59    Mr Campbell deposed by affidavit in this proceeding to deciding that the principal investigator until October 2021 should not be present at the Conduct Committee meeting because he:

… considered that the discussion of the matter at that meeting should be tightly controlled to ensure that there was no inadvertent mention of the disputed material and that the only information that was presented to the Committee was the information contained in a revised submission that removed reference to the disputed material. The role of a presenter at Board Conduct Committee meetings is to take the Committee through the material contained in the submission and to step them through the decision under consideration. I considered that personally presenting the submission to the Committee was the best way to achieve this.

60    Mr Campbell further deposed to:

(a)    having in mind that the Conduct Committee should not have regard to the disputed material in considering Mr Incollingo’s matter, and subsequently preparing the revised submission;

(b)    confirming with the three Conduct Committee members that the only knowledge they had of Mr Incollingo’s case was what they had read in the meeting papers, and that they had not searched for or read any other information about him (as they had been asked not to do in a prior email sent to them at Mr Campbell’s behest); and

(c)    making sure that he confined what he said to the Conduct Committee to what was in the revised submission, avoiding any reference to the disputed material.

61    This is positive evidence, which I accept, as to the steps taken to ensure that the Conduct Committee did not receive, and therefore take into account, any material that was covered by the s 128 certificate, including derivative material. Accordingly, the cases that Mr Incollingo relies upon about the impossibility of a recipient of such information being able to separate that from non-forbidden information have no application to this case.

62    A copy of that final submission to the Conduct Committee was before me, as was Mr Incollingo’s affidavit that was before Davies J (with some redactions) and upon which he was cross-examined. In that affidavit, he deposes to directing Mr Amorello to prepare the backdated documents in substantially the same terms as his prior statutory declaration, to receiving those documents in draft, and to directing that certain errors in them be corrected, before sending them to the ATO in answer to the s 264 notice. There was never any impediment posed by the s 128 certificate to the Conduct Committee having a copy of, and having regard to, that affidavit.

63    In this proceeding, Mr Incollingo obtained documents from the Board by notices to produce, which show that the matter was initially allocated to an investigator on about 9 November 2020, and that this investigator had knowledge of Mr Incollingo’s oral evidence before Davies J that was protected by the s 128 certificate. He submits that the documents go further and establish reliance upon the oral evidence and upon information derived from that evidence. However, I have reviewed those documents, being some 50 pages annexed to his solicitor’s affidavit and consider that this submission considerably overstates the situation. It is not necessary to go letter and verse into that material beyond what follows.

64    Mr Incollingo relies upon 16 “I&E Call over and case plan” documents received in response to a notice to produce, each of which refer to the Davies J judgment and related newspaper articles stating that he had backdated documents for a property developer. None of those documents go as far as Mr Incollingo’s own affidavit in the proceedings before Davies J as mentioned above, making this point barren in its impact. No reference is made within the case plans to the content of the transcripts of Mr Incollingo’s oral evidence before her Honour.

65    Mr Incollingo’s evidence in cross-examination before Davies J about the backdating of the two documents unsurprisingly covered much the same territory as his affidavit evidence in chief, albeit in less detail. What he had done – that is, his conduct as opposed to his state of mind – was never apparently in dispute. As to his state of mind, he had deposed to not being motivated by fraudulent intent by backdating those documents, but rather by recreating documents that he believed had existed, but were missing from his client’s records. This relatively benign motivation behind the creation and provision of false documents was challenged in cross-examination. This included questioning the basis upon which he deposed to believing that Demian Holdings Pty Ltd (as the trustee of the Demian Trust), was a unit holder in the Lewisham Estates Trust (LET), being an aspect of what was conveyed by one of the false backdated documents. Mr Incollingo also gave evidence in cross-examination that Mr Amorello had located minutes referring to “replacing Tramdell as trustee of the Demian Trust with Demian Holdings”, also referred to by Davies J at [112]. Mr Incollingo otherwise maintained his affidavit evidence, including instructing Mr Amorello to prepare the two false documents, and providing them himself to the ATO. Importantly, Davies J made serious adverse findings about the truthfulness of other aspects of Mr Incollingo’s evidence in cross-examination which formed no part of the information that the materials before the Conduct Committee referred to, but were not covered by the s 128 certificate.

66    On 1 December 2021, Mr O’Neill in his capacity as the Secretary and CEO of the Board wrote to Mr Incollingo, advising that the Conduct Committee had decided that he had failed to comply with the Code of Professional Conduct in the TAS Act and in particular had failed to comply with ss 30-10(1) and (11). Given Mr Incollingo’s admitted conduct, this was hardly surprising. A contrary conclusion would have been surprising.

67    Mr O’Neill’s letter noted the submissions made on Mr Incollingo’s behalf as to sanctions in the event that such a finding was made, and said the following:

In determining the appropriate administrative sanction on Mr Gerardo Incollingo for his breaches of the Code, the Committee noted the following:

1.    The conduct engaged in by Mr Incollingo was extremely serious and undermined the integrity and effective administration of the taxation system.

2.    The actions taken by Mr Incollingo were deliberate and calculated and could not be put down to an inadvertent accident.

3.    Mr Incollingo has been registered with the Board for a significant period of time, and this is the first instance of misconduct considered by the Board. The Committee considered this to demonstrate that the conduct resulting in the breaches was an aberration rather than an ongoing pattern of misconduct.

4.    The conduct resulting in the breaches had occurred some time ago (in 2015), and there had been no further issues raised in the intervening time period.

5.    The conduct had occurred during a time of personal and emotional challenges for Mr Incollingo with regard to ill-health of a family member, and Mr Incollingo was highly regarded by other tax practitioners (as evidenced by the character references provided).

Given the above, in accordance with subparagraph 60-125(2)(b)(i) of the TASA and subparagraphs 30-15(2)(b) and 30-15(2)(c), the Committee imposed the following administrative sanctions:

1.    A suspension of Mr Incollingo’s registration for a period of 6 months;

2.    An Order under section 30-20 of the TASA requiring Mr Incollingo to:

The Committee noted that in the absence of the mitigating factors outlined above, it would likely have terminated Mr Incollingo’s tax agent registration.

The granting of the s 128 certificate

68    The evidence in chief of Mr Incollingo before Davies J, as relevant to this proceeding, was his 23 October 2019 affidavit, as adopted and tendered on 15 June 2020. He gave no oral evidence in chief and no actual evidence in re-examination, only giving evidence in re-examination to being alone and unaided in a room when he gave evidence (due to the hearing being conducted online). His evidence in cross-examination took place between 3.55 pm and 4.23 pm on 15 June 2020 and between 10.19 am and 11.18 am on 16 June 2020.

69    Prior to adopting his 23 October 2019 affidavit, Mr Incollingo gave the following evidence in response to questions from his then senior counsel:

And Mr Incollingo, has it in the course of the last week been explained to you that the answers to questions that may be put to you in cross-examination by counsel for the Commissioner of Taxation may, in respect of issues covering the creation of 35 documents or the provision of information or documents to the Tax Office may have a tendency to incriminate you?---Yes.

And has it been explained to you that the court has the power to indicate to you that a certificate may be given in respect of answers that you give?---Yes.

And are you willing to answer questions going to the matter of the creation of documents or the provision of information or documents to the ATO, pursuant to such a certificate?---Yes, I am.

But otherwise, do you object to giving answers to questions that may be incriminating in respect of those matters?---I do not.

70    Justice Davies was then asked by Mr Incollingo’s then senior counsel to give an indication pursuant to s 128(3) of the Evidence Act, being the process by which incriminating evidence only need be given under the protection of a certificate issued under s 128(5), the issue having been canvassed in legal debate prior to Mr Incollingo attending to give evidence. Her Honour was satisfied that there was a proper basis for Mr Incollingo objecting to giving evidence relating to the backdating of documents and the provision of those backdated documents to the ATO on the ground that it may tend to prove that he had committed an offence against or arising under an Australian law. Her Honour stated that she was prepared to grant Mr Incollingo a certificate under s 128 of the Evidence Act with respect to that particular evidence.

71    Thus, Mr Incollingo did not object to giving evidence, including in cross-examination, but, for evidently sound reasons, was concerned about the risk of exposing himself to criminal prosecution. It is apparent from what was said to Davies J by his then senior counsel that this concern was not with the fact of his conduct concerning the backdated documents, which he had never denied as set out in his 16 October 2018 statutory declaration, and in his 23 October 2019 affidavit, but rather with the state of mind with which he had engaged in that conduct. The explanation given in both of those documents, being that he merely completed the documentary record by producing a facsimile of what he believed may have, or should have, always existed so as to help the ATO was, at least on its face, implausible. His willingness to give evidence for his client, extending to cross-examination, was conditional on obtaining the protection from the answers he gave being used against him for the purposes of any criminal prosecution that might well have followed but for the protection of the s 128 certificate.

72    That cross-examination, as protected by the s 128 certificate, largely discredited the explanation that he gave for his conduct, and even more so for other evidence he gave that was not protected concerning his failure to correct other misleading information given to the ATO in relation to what was referred to as the November 2006 documents. Had that evidence been available for the Conduct Committee to consider, it is difficult to see how they could have reached the beneficial conclusion that they did as to Mr Incollingo’s conduct.

The evidence given under the protection of the s 128 certificate referred to in the Davies J judgment

73    Justice Davies, at the time of indicating that a s 128 certificate would be issued, asked the then senior counsel for the Commissioner of Taxation to indicate when he was about to enter a line of cross-examination to which the certificate would apply. This was evidently sought so that the start of evidence in cross-examination given by Mr Incollingo that might be covered by the certificate would be clearly identified. That indication was duly given 7 pages later in the transcript. A short time after the indication was given, the following questions were asked and answers given (emphasis added):

And all he [Mr Amorello] was able to find was a copy of the trust deed for the Lewisham Estates Trust; is that right?---Yes. And the original minutes.

When you say, “the original minutes”, what do you mean by that?---The Tramdell to Demian Holdings.

74    As this is the only time the phrase “original minutes” was used during the course of Mr Incollingo’s cross-examination, and it was not used in his 23 October 2019 affidavit, that is the evidentiary source of its reproduction in quotes at [112] of Davies J’s judgment.

75    The s 128 certificate also covered the part of the cross-examination the next day, 16 June 2020, when the following question was asked and answer given (emphasis added):

Well, can I suggest that, really, the problem was not that but it was explaining how the units in the Lewisham Estates Trusts had moved from Advanced Holdings to Demian Holdings; isn’t that right?---No, my opinion had never changed from the fact that the units were held by the trust. In – my thoughts were that the units were always held from the trust – by the Demian Trust from day 1.

76    As this is the only time the phrase “from day 1” (or “from day one”) was used during the course of Mr Incollingo’s cross-examination, and it was not used in his 23 October 2019 affidavit, that is the evidentiary source of the phrase “from day 1” in quotes at [112] of Davies J’s judgment.

77    The rest of the evidence given by Mr Incollingo on the topic of the creation and provision of false documents to the ATO, including the backdating of those documents to make them appear to be genuine, was readily able to be sourced in the text of his 23 October 2019 affidavit. The way in which the balance of [112] of Davies J’s judgment is expressed leads me to conclude that it is based on the affidavit evidence that was before her. That is, the only two parts of her Honour’s judgment concerning the creation and provision of false documents to the ATO, including the backdating of those documents to make them appear to be genuine, as covered by the s 128 certificate were the phrases “original minutes” and “from day one” (recorded by the court reporter as “from day 1”) in [112]. That difference between the judgment and the transcript supports the inference that Davies J was taking notes as the evidence was being given, most likely by reference to the affidavit that was before her Honour. On any view, the addition going beyond the information in Mr Incollingo’s affidavit was slight and of no importance to the issue that was before the Conduct Committee. Nor was it of any importance to the antecedent investigation. It was of importance to the other findings that her Honour made as to the underlying transactions not having taken place, which are not presently relevant.

The scope of s 128 in relation to proceedings in an “Australian court”

78    Section 128(7) of the Evidence Act provides:

In any proceeding in an Australian court:

(a)    evidence given by a person in respect of which a certificate under this section has been given; and

(b)    evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence;

cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.

79    The Dictionary to the Evidence Act provides (emphasis added to (e)):

Australian court means:

 (a)    the High Court; or

 (b)    a court exercising federal jurisdiction; or

 (c)    a court of a State or Territory; or

 (d)    a judge, justice or arbitrator under an Australian law; or

(e)    a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence; or

(f)    a person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence.

80    Of the numerous authorities to which my attention was directed by the parties regarding (e) of the definition of “Australian court”, most were not concerned with the use of that term in the broader phrase “proceeding in an Australian court” in s 128(7), and so did not consider the meaning of “proceeding”.

81    The capacity to hear and receive evidence means that an administrative tribunal which will ordinarily have that function will be an “Australian court”: Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397 at 409.10 per Finkelstein J in relation to the Refugee Review Tribunal, now a part of the Administrative Appeals Tribunal (an aspect not affected by the subsequent appeals to the Full Court and to the High Court). The same conclusion was reached about the New South Wales Civil and Administrative Tribunal (NCAT) by Rares J in Quach v MLC Limited (No 6) [2021] FCA 271 at [9]-[10]. Similarly:

(a)    in Australian Workers’ Union v Registered Organisations Commissioner (No 7) [2019] FCA 195, Bromberg J considered that the Senate could be an “Australian court” because of its constitutional power to compel the giving of evidence, without needing to consider the issue of a “proceeding” in deciding to give a s 128 certificate;

(b)    a coronial inquiry or an inquiry before the New South Wales Independent Commission Against Corruption is a proceeding in an Australian court, but the proceeding aspect for each is straightforward and obvious, with no attention given to any antecedent investigative action: see, respectively, Addenbrooke Pty Limited v Duncan (No 5) [2014] FCA 625 per Foster J at [88]; and Heffernan v Innes [2021] NSWSC 1033 per Hallen J at [192];

(c)    the New South Wales Legal Services Commissioner, and that Commissioner’s Office, both concerned with professional conduct investigations concerning legal practitioners, are Australian courts in the wider sense of the definition because of their capacity to hear and consider evidence, each also being required to apply the rules of evidence so as to fall within (f) of the definition of “Australian court”, as part of determining whether to commence disciplinary proceedings for professional misconduct, again with no direct attention given to any antecedent investigative action: Q v Crest [2009] FamCA 1043 at [52];

(d)    in Caffyn & Caffyn [2021] FedCFamC1F 68 (a decision of Division 1 of the Federal Circuit and Family Court of Australia, formerly the Family Court of Australia), at [36], the Child Support Registrar was found to be an “Australian court” by reason of being able to receive and examine evidence, including documentary evidence supplied by parties. However, per [47], in that case the determination of whether a proceeding was involved turned on the meaning of “however described” following “proceeding” in the definition of “Australian or overseas proceeding”, considered below and found to give a wider meaning to “proceeding” than that word taken alone.

82    I did not find two other cases relied upon by Mr Incollingo to be of assistance, namely R v Ronen [2004] NSWSC 1284 and Deputy Commissioner of Taxation v Gould [2020] FCA 337.

83    None of the above decisions support the submission by Mr Incollingo that a “proceeding in an Australian court” extends to purely investigative functions or decision-making, relying upon a broad dictionary definition to give a wide meaning to “proceeding”, discussed below.

84    Dealing first with the application of the definition of “Australian court”, as already noted, subdiv 60E of the TAS Act deals with investigations, including the power to request production of documents, and take evidence on oath or affirmation. Specifically:

(a)    s 60-105(1) provides that the Board may by notice in writing require a person to appear before it and give evidence or produce documents or things referred to in the notice;

(b)    s 60-110 enables the Chair of the Board or a person acting on behalf of the Chair to require the evidence to be on oath or affirmation, which extends to the adoption of a written statement by verifying it on oath or affirmation;

(c)    s 60-115 provides that a person is not excused from giving evidence or producing a document on the ground that doing so might incriminate a person or expose them to a penalty; however, in the case of an individual, such material is not admissible in evidence in a proceeding other than for specified offences, including criminal offences for false or misleading information or documents.

85    By reason of s 60-105, read in the context of ss 60-110 and 60-115, the Board falls within the description in (e) of the exhaustive definition of “Australian court”, being “a person or body authorised by an Australian law … to hear, receive and examine evidence”. Thus, the activities of the Board falling within the terms of a “proceeding in an Australian court” require it to observe the prohibition on the use of the parts of Mr Incollingo’s evidence in cross-examination before Davies J that are covered by the s 128 certificate issued by her Honour. This extends to material obtained derivatively from that evidence: s 128(7)(b).

86    The parties are divided on which aspect of the Board’s activities falls within the phrase “proceeding in an Australian court”, and thus on the meaning of “proceeding” in this context. Mr Incollingo contends that “proceeding” extends to everything that the Board did, in particular including the Investigation Decision and the Sanction Decision. The Board submits that in this case, only the phase before the Conduct Committee is a proceeding, there having been no exercise of the power to obtain oral evidence from Mr Incollingo.

87    As Mr Incollingo submits, the protection from use or derivative use of material covered by a s 128 certificate by persons or bodies is not confined to those to which the Evidence Act applies, because that would greatly limit the extent of penalty privilege protection, and would be contrary to the expressly wider terms of subs (e) in the definition of “Australian court”, noting that the definition at subs (f) makes express reference to bodies to which the rules of evidence apply (which does not apply to the Board). The Board does not argue to the contrary. But it does not follow from that conclusion that, as Mr Incollingo further submits, an ordinary dictionary definition of “proceeding” without any overt legal dimension, such as a “particular action or course of action; a piece of conduct or behaviour” derived from the Shorter Oxford Dictionary (6th ed, 2007) is applicable. This would potentially give a s 128 certificate a much wider application than a contextual reading of s 128(7) would seem to contemplate, extending to virtually any person or body caught by the wider aspect of the definition of “Australian court”. It endeavours to give the word “proceeding” a meaning that is divorced from its place in the phrase “proceeding in an Australian Court”. As Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ pointed out in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 396-397:

The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question. In R v Brown ([1996] 1 AC 543 at 561]), a recent House of Lords decision, Lord Hoffmann said:

The fallacy in the Crown’s argument is, I think, one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence ... This is not the way language works. The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole.'

88    Such an interpretation also runs counter to certain of the observations made and conclusions reached by Campbell AJA (with whom Mason P and Handley JA agreed) in Ryan v Watkins [2005] NSWCA 426. That case concerned a medical assessor duly appointed pursuant to the provisions of the Motor Accidents Compensation Act 1999 (NSW) who issued certain certificates and a statement of reasons, made under guidelines issued under that Act by the Motor Accidents Authority of New South Wales. The issue before the Court was the refusal of a claim of public interest immunity in the District Court of New South Wales claimed in response to records sought by a subpoena relating to the medical assessment of the respondent to the appeal. The live issue was whether the medical assessor was a “judge in an Australian or overseas proceeding” for the purposes of ss 16, 129 and 130 of the Evidence Act 1995 (NSW), which is substantially the same as the Evidence Act 1995 (Cth), such that public interest immunity applied to those records. It was determined that this definition did not apply to the medical assessor.

89    Relevantly, the result in Ryan v Watkins included the conclusion reached about both the definition of “Australian court” and “proceeding”, albeit in the wider sense of “proceeding” in the definition of “Australian or overseas proceeding”. Campbell AJA said:

[119]    Mr Gageler then relied upon para (e). The meaning of this provision is somewhat obscure. However Mr Gageler, in my view correctly, accepted that the person or body would not be one whose role was purely investigatory.

[120]    It would take very clear words indeed to indicate that the Parliament had intended that “an Australian court” could include a person or body that was not independent of executive or administrative oversight in decision-making and was not bound by rules of procedural fairness (see Ex parte Walsh and Johnson; In Re Yates (1925) 37 CLR 36 per Isaacs J at 93). There are no such words in the Evidence Act 1995.

…

[127]    A medical assessor acting in accordance with the Guidelines is not acting independently or in accordance with rules of procedural fairness. Accordingly, he is not a person falling within para (e).

[128]    Thus the procedures followed by the medical assessor were not “proceedings in an Australian court”.

90    I do not accept the submission by Mr Incollingo that the functions of the Board are indivisible for the purposes of s 128(7). It is only such of its functions that constitute a “proceeding in an Australian court” that s 128(7) applies to. Ryan v Watkins at [127] is apt to apply to the investigatory functions of the Board, but not to processes and determinations of a Conduct Committee. The rules of procedural fairness extend to what is given to a Conduct Committee, but not to the Board’s antecedent investigative processes, except, perhaps, when evidence is taken, which did not take place in this case and therefore does not arise. It follows that in the circumstances of this case, it was only what was given to the Conduct Committee that was covered by s 128(7). The Board’s stance to that effect is correct.

91    This conclusion also better aligns with the statutory history of s 128. The enactment of s 128 was a careful and deliberate statutory bargain, partly departing from what had been recommended by the Australian Law Reform Commission. It involved a winding back of the common law concept of privilege against self-incrimination and its cousin, penalty privilege, in a protected way. It entailed trading a private right or interest not to be compelled to give self-incriminating evidence, for a public interest in such evidence being given and therefore being made available, with a deliberately confined compensation for that private loss: see Construction, Forestry, Mining and Energy Union and Another v Australian Building and Construction Commissioner [2018] FCAFC 4; 259 FCR 20 (CFMEU v ABCC) at [35]. Such a deliberately confined ambit for the operation of s 128(7) should not be lightly dispensed with. The protection should be confined to what is clearly encompassed by a “proceeding in an Australian court”.

92    Better suited to the TAS Act, the functions and operations of the Board, and the evident scope and purpose of s 128(7), are the parts of the following two dictionary definitions of “proceeding” that are consistent with the use of that word in the phrase “proceeding in an Australian Court” and which also accommodate the wider definition of “Australian court”:

(a)    the last part in bold of the definition in law of “proceeding” in the Macquarie Dictionary (8th ed, 2020):

noun 

1.  a particular action or course of action.

2.  action, course of action, or conduct.

3.  the act of someone or something that proceeds.

4. (plural) records of the doings of a society.

5. Law

a.  the instituting or carrying on of an action at law.

b.  a legal step or measure: to institute proceedings against a person.

(b)    LexisNexis Australian Legal Dictionary (2nd ed, 2016) in the portion underlined:

proceeding An action commenced in a court, whether between parties or not, including an appeal: for example, Federal Court of Australia Act 1976 (Cth) s 4. Historically, the term ‘proceeding’ was given a narrow interpretation to mean the invocation of jurisdiction of the court by process other than a writ (Herbert Berry Associates Ltd v Inland Revenue Cmrs [1978] l All ER 161; [1977] I WLR 1437, 1446), or an application by a suitor to a court in its civil jurisdiction for its intervention or action (Cheney v Spooner (1929) 41 CLR 532, 538). This traditional legal meaning has been extended (for example, under Extradition Act 1988 (Cth) s 19(1)) to mean the steps and procedures that take place before an investigating magistrate, even if the task of the magistrate is administrative as distinct from legal or judicial: Forrest v Kelly (1991) 32 FCR 558 [at 568]; 105 ALR 397, 408. See also action; appeal; hearing.

93    The above definitions also better aligns with the purpose behind s 128(7), accommodating a broader reach than only courts of law, but capturing the notion of a legal process of some kind by which evidence may be taken, or to which the rules of evidence apply, and containing at least some kind of adjudication in favour of or against someone, which ordinarily imports obligations of procedural fairness in relation to such an adjudication. It also better accords with the use of “Australian court”, including by the plural “Australian courts”, in the Evidence Act, which is used in a variety of provisions: see ss 5 (which in turn extends the operation of numerous provisions of the Evidence Act), 121(2), 122(5)(c), 128A(8), 131B, 157 and 178(6).

94    The LexisNexis Australian Legal Dictionary definition reproduced above refers to the decision of O’Loughlin J in Forrest v Kelly (1991) 32 FCR 558, which was an extradition case. Some detail about that case is necessary to understand the significance of his Honour’s reasoning to the meaning to be given to “proceeding” in s 128(7) of the TAS Act. One of the issues raised in Forrest v Kelly concerned the transitional provisions in relation to the replacement of the Extradition (Foreign States) Act 1966 (Cth) with the Extradition Act 1988 (Cth). The new Act involved a substantially easier regime for requesting countries: see Pauga v Chief Executive of Queensland Corrective Services [2023] FCAFC 58; 408 ALR 56 at [156] and [159]. An extradition warrant had been issued under the old Act but was not executed, and then a fresh warrant was issued under the new Act, which was executed. The applicant contended that a magistrate had erred in ruling that he was not a “former Act person” as defined in s 3 of the Extradition (Repeal and Consequential Provisions) Act 1988 (Cth) (Repeal Act). As his Honour pointed out, the new legislation

recognised that there might be applications for extradition orders on foot, but not completed, at the time when it came into operation. In general terms, the legislature allowed that any such application in respect of a person would be concluded under the old legislation as if it had not been repealed.

95    A person in that position was a “former Act person”, which included a person in respect of whom “proceedings had commenced” prior to the start of the new Act. The applicant in Forrest v Kelly contended that “proceedings” against him commenced with the issue of the original warrant in the requesting country, when the old Act was still in force. The respondent argued that the proceeding commenced with the issue of the second extradition warrant after the new Act commenced. The respondent’s argument prevailed.

96    O’Loughlin J in Forrest v Kelly had regard to the language of the old Act, the new Act and the Repeal Act in reaching the conclusion that a person will only be a “former Act person” if, before the commencement of the new Act, a magistrate had “set about the task” of considering whether to commit the person to await the warrant of the Attorney-General for the surrender of the person. His Honour observed in reaching that conclusion:

No “proceedings”, in the traditional sense of that word, take place in the process of seeking and obtaining an extradition order. Nevertheless, as both the Act and the Repeal Act have used the word “proceedings” in relation to extradition applications and orders, it is necessary to look to the new legislation to ascertain the meaning to be given to the word. This exercise indicates that the legislature has given “proceedings” an expansive use. For example, s 3 of the Act contains a statement of the “principal objects” of the legislation; they include the provision for “ ... proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited ... ”. Likewise s 19(1) of the Act refers to a magistrate conducting “proceedings to determine whether the person is eligible for surrender in relation to the extradition offence ... ”.

Used in this context, it seems to me that the legislature has seen fit to give to the word “proceedings” a meaning that expands its traditional legal interpretation but which nevertheless still limits it (at least in the context of the facts of this case) to the steps and procedures that take place before the investigating magistrate. That is not a strained interpretation; one of the definitions of the word that appears in the Shorter Oxford English Dictionary is “any act done by authority of a court of Law” while The Macquarie Dictionary includes this broad definition: “a legal step or measure.”

If that limitation applies when considering the provisions of the Act, it stands to reason that harmony can only be achieved by attributing the same meaning to the word “proceedings” wheresoever it is used in the Repeal Act. In that Act, the definition of “former Act person” includes the use of the word “proceedings” in the sense of “proceedings [that] had commenced in relation to the person for the purposes of sub-section 17(6) of [the Extradition (Foreign States) Act]”. In fact, s 17 of the repealed Act did not contain the word even though the heading to the section was entitled “Proceedings after apprehension of person”.

97    I take from O’Loughlin J’s reasoning in Forrest v Kelly that legislation may be interpreted to give an expanded meaning of “proceeding” which still limits that expansion to align with the evident purpose of the provision in which it is deployed. In this case, the meaning of the word “proceeding” in the phrase “proceeding in an Australian court” in s 128(7) of the Evidence Act, read with the entirety of the definition of “Australian court” in the Dictionary to that Act, is to be understood as some kind of legal process in a wider sense, involving obligations of procedural fairness. It is extended by the wider aspects of the definition of “Australian court” to encompass like proceedings which can give rise to the imposition of a sanction of some kind. After all, s 128(7) is directed to preventing the later use or derivative use of material exposing a person not just to a criminal proceeding and sanction, but also against self-exposure to a civil or administrative penalty, commonly known as a penalty privilege: see CFMEU v ABCC at [19]; see also the balance of the discussion of the history of s 128 at [20]-[36].

98    Section 128(7) is designed to protect a person giving incrimination information under legal compulsion from having that used against them. However, it is not an absolute barrier to such information, and derivative information, being used in the course of an investigation, provided that both are quarantined from the ultimate decision-maker and no contamination takes place.

99    The burden of the conclusion that O’Loughlin J reached in Forrest v Kelly was that the process before the magistrate, acting administratively as the relevant decision-maker, had to have commenced before the proceeding had commenced. Mere administrative steps, such as issuing a prior arrest warrant, which was not even executed, would not suffice. Applying that reasoning to the Board, that could occur when evidence was being taken from Mr Incollingo (which did not happen), but failing that, it would occur at the point at which the Conduct Committee received and began considering the submission and supporting material, including the presentation of that material to them by Mr Campbell. It did not occur prior to the Investigation Decision being made, when that decision was made, or during the formal investigation that ensued, although there was always a real risk of contamination of the Conduct Committee’s decision-making process (itself a proceeding) with the use or derivative use of material covered by the s 128 certificate. As I conclude below, I am not satisfied on the balance of probabilities that this took place. In fact, I am positively satisfied that Mr Campbell took careful, deliberate and successful steps to ensure this did not occur.

100    In support of the above, and as it arose in Caffyn & Caffyn in relation to the Child Support Registrar and the meaning of “proceeding”, Pt 1 of the Dictionary also defines “Australian or overseas proceeding” to mean “a proceeding (however described) in an Australian court or a foreign court”. That additional aspect of the definition, by the use of the phrase “however described”, expressly extends the meaning of “proceeding” further again. This suggests that where the key phrase “proceeding in an Australian court” and like phrases are used without such an extension, e.g., in ss 123(5)(c), 128(7), 128A(8) and 131B, it does not have that wider application. The use of “however described” to expand the reach of “proceeding” in the definition of “Australian or overseas proceeding”, with there being no such expanded use in s 128(7), reinforces the conclusion that Mr Incollingo’s submission that an ordinary dictionary definition of proceeding, such as a “particular action or course of action; a piece of conduct or behaviour” derived from the Shorter Oxford Dictionary (6th ed, 2007), is applicable should be rejected.

101    It follows that a harmonious reading of “proceeding in an Australian court” with the definition of “Australian court” means that the meaning to be given to (e) of that definition should not be any wider than is necessary to achieve its purpose. It is directed to ensuring that material covered by a s 128 certificate is not used directly or derivatively by a decision-maker in ultimately deciding whether particular conduct has taken place, whether it transgresses a law of some kind in some way, and if so, what sanction should be applied. It is not directed to preventing any non-contaminating antecedent use, albeit that in many situations avoidance of such contamination may not be as readily achieved as it was by Mr Campbell in this case in his dealings with the Conduct Committee.

102    I therefore find that the restriction on use or derivative use applied to the Conduct Committee in considering the material placed before it, but did not apply to the investigative stage before then, including in the making of the Investigation Decision. This conclusion is not without practical difficulties. The Board still needs to be wary about use, and particularly derivative use, of material covered by a s 128 certificate, lest that infect what is provided to a Conduct Committee. That would not inevitably lead to the conclusion that such material cannot be used, as it arguably was, in the derivative sense, by the initiation of inquiries following the reporting of, and obtaining of, Davies J’s judgment. However, ultimately this did no more than detect conduct on the part of Mr Incollingo that ultimately led to an investigation overtly based upon the judgment of Katzmann J, and the assembly of submissions and supporting material for the consideration of the Conduct Committee independently of use or derivative use of such material.

103    While doubtless it would have been safer and better for the Board to have had regard to the warning given by the ATO for the investigators not to have looked at the evidence before Davies J, or her Honour’s judgment, early caution was expressed by Mr O’Neill when he first became aware of Mr Incollingo’s conduct through media reporting, and no harm was done and no ultimate breach of s 128(7) took place. Therefore, I am satisfied that no proscribed contamination in fact took place of the kind referred to in the authorities to which my attention was directed. Notwithstanding, even if there was contamination in the investigative phase, that was not proscribed by s 128(7) in relation to the Investigation Decision nor at any stage prior to the ultimate submission and supporting material being placed before the Conduct Committee. I am also satisfied that the Conduct Committee was quarantined from using directly or derivatively any of the material covered by the s 128 certificate.

104    The above conclusion aligns with the Board’s characterisation of its processes in respect of Mr Incollingo as being multi-staged, with:

(a)    the first stage involving Board officers making the Investigation Decision and carrying out the investigation; and

(b)    the second stage, distinct from the first, involving three members of the Conduct Committee considering the evidence presented to that committee by a Board officer, Mr Campbell, deliberating upon that evidence and making the Sanction Decision.

105    The Board submits that the Conduct Committee was exercising specific functions delegated to it that enabled it to sanction Mr Incollingo. Those functions were not able to be exercised by the Board’s officers as they did not hold the necessary delegation. The substance of the Board’s position is that s 128(7) applied to what amounts to a “proceeding” before the Conduct Committee, such that it could not rely upon material covered by the s 128 certificate, nor upon material derived directly or indirectly from that material. This did not occur because of the precautionary steps taken by Mr Campbell and also by the Conduct Committee members in confining themselves to the final submission which excluded altogether the evidence of Mr Incollingo in cross-examination and her Honour’s judgment. I agree with the Board’s submission, noting that the same conclusion would likely apply to a Board process involving the exercise of its power to compel evidence to be given.

The grounds of review

106    Mr Incollingo seeks a declaration that the Investigation Decision is invalid and of no effect, a declaration that the Sanction Decision is unlawful, invalid and of no effect, and a writ in the nature of certiorari quashing each of those decisions. His four grounds for seeking that relief may be summarised as follows:

(1)    Pursuant to s 5(1)(e) of the ADJR Act, the Investigation Decision was an improper exercise of power conferred by the TAS Act because of:

such that the exercise of the power to commence the investigation was so unreasonable that no reasonable person could have so exercised the power.

(2)    Pursuant to s 5(1)(e) of the ADJR Act, the Sanction Decision was an improper exercise of power conferred by the TAS Act because of:

(3)    Pursuant to s 5(1)(a) of the ADJR Act, a breach of the rules of natural justice and procedural fairness occurred in connection with the making of the Investigation Decision and the Sanction Decision.

(4)    Each of the above three grounds also constituted jurisdictional error under s 39B of the Judiciary Act.

107    One feature of Mr Incollingo’s originating application considered below and his written submissions that warrants comment and correction is that both refer to his evidence in cross-examination before Davies J, under the protection of the s 128 certificate that he sought, as being “coercive material”. While that evidence was certainly evidence given under compulsion in the sense of being required to answer questions in cross-examination even if they may incriminate him, it has been doubted by a majority in the High Court, without deciding, whether a witness who “objects” to giving evidence in cross-examination or re-examination for the purposes of s 128 where the witness “sets out to adduce in chief evidence revealing the commission of criminal offences”, should be treated in the same way as “witnesses who, after objection based on genuine reluctance, give evidence in cross-examination about some crime connected with the facts about which evidence is given in chief”: Cornwell v The Queen [2007] HCA 12; 231 CLR 260 at [111] per Gleeson CJ, Gummow, Heydon and Crennan JJ. It has been authoritatively decided that a party witness cannot be taken to “object” for the purposes of s 128: Song v Ying [2010] NSWCA 237; 79 NSWLR 442 at [26]-[28], endorsed in Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 4; 259 FCR 20 at [62]-[63].

108    While Mr Incollingo was not a party witness before Davies J, he was giving evidence for a client of his firm, and voluntarily provided an affidavit of the evidence he was willing to give. As the above consideration of what took place at the hearing before Davies J makes clear, his problem arose from his affidavit evidence being challenged in cross-examination, and the potentially serious criminal nature of his conduct, especially as to his state of mind, which might have been exposed in the course of being compelled to give that evidence. It is clear enough that, at the time he sought the s 128 certificate, Mr Incollingo was not thinking about mere disciplinary proceedings conducted on behalf of the Board by a Conduct Committee, but rather potentially much more serious criminal consequences. Certainly, there is no evidence of him having any such lesser concern at the time he was cross-examined.

109    In all the factual and legal circumstances set out set out above, the word “coercive” is inapt to describe the situation Mr Incollingo was in. The term “coercive material” has not been repeated in these reasons. Instead, reference is made to Mr Incollingo’s evidence in cross-examination, or the transcripts of that evidence. That is more accurate, because Mr Incollingo’s evidence in cross-examination, in keeping with such evidence generally, was formally compelled under s 128 of the Evidence Act, and in truth was evidence willingly given with that protection.

Ground 1 – improper exercise of power in making the Investigation Decision

110    Mr Incollingo’s case on this ground turns on the draft submission to a Conduct Committee with attached supporting material accompanying it, referred to by him as the “first submission” or the “original submission”. This is in contrast to the final submission with revised attached supporting material, which was the only submission that actually went before the Conduct Committee. That draft submission was dated 30 September 2021, and sent to Mr Incollingo the same day, being over four months after the Investigation Decision had been made on 11 May 2021. As detailed above, that draft submission was sent under cover of a letter from Mr O’Neill also dated 30 September 2021, attaching the draft submission and a notice of possible outcomes. That notice of possible outcomes was referred to in the letter as a notice of potential sanctions or decisions the Board may make if it was determined that Mr Incollingo had failed to comply with the TAS Act. These sanctions or outcomes were listed in that notice as including a written caution, an order under s 30-20 (requiring education or training, or supervision on services able to be provided), suspension of registration or termination of registration.

111    In the draft submission, Mr Incollingo placed particular emphasis on the following (except perhaps [18]) as being material covered by the s 128 certificate (footnotes embedded):

[17]    On 15 and 16 June 2020 as part of the proceedings between Advanced Holdings Pty Limited as trustee for the Demian Trust and the Commissioner of Taxation, Mr Incollingo was cross-examined in relation to the creation of documents and the provision of those documents to the ATO. During the cross-examination Mr lncollingo was questioned about the emails showing he had created and backdated documents. Mr lncollingo agreed that the Unit Trust Certificate and Unit Trust Transfer documents had been created in February 2015 and backdated to show them being signed on 15 May 2003, but maintained that he did so based on his belief that he was creating documents to accurately reflect the ownership of the units.

Attachment 17. Transcript of Mr lncollingo's cross-examination dated 15 June 2020.

Attachment 18. Transcript of Mr lncollingo's cross-examination dated 16 June 2020.

[18]    On 15 October 2020, the Federal Court of Australia handed down its decision in Advanced Holdings Pty Limited as trustee for The Demian Trust v Commissioner of Taxation [2020] FCA 1479. Advanced Holdings was assessed to the net income of the Lewisham Estates Trust. Paragraph 109 of that decision noted the backdating of documents and the Board commenced inquiries as a result.

Attachment 19. Federal Court decision in Advanced Holdings Pty Limited as trustee for The Demian Trust v Commissioner of Taxation [2020] FCA 1479.

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[32]    Under cross-examination, asked about the red highlighted text and question from Mr Amorello “DO WE INCLUDE THIS???” Mr lncollingo conceded that the document is inconsistent with the income tax return he lodged for the Demian Trust, but he refused to concede that Mr Amorello was asking him “DO WE INCLUDE THIS???” because the document was plainly inconsistent with the position that Mr lncollingo was proposing to present to the ATO. Despite the question being posed in capitals and the text identifying the document being highlighted red, Mr lncollingo claimed that “I didn't even look at those documents at the time” and said “unfortunately, I should have looked at them.”1 [1Transcript of cross-examination, 16 June 2020, P 107.]

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[36]    Under cross-examination, when asked “You were creating documents which purported to be original documentation, but they weren’t. That's right, isn't it?” Mr lncollingo answered “Yes.”2 [2Transcript of cross-examination, 16 June 2020, Attachment 18, P 102.]

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[44]    Under cross-examination on 16 June 2020 in Advanced Holdings Pty. Ltd. as trustee for the Demian Trust and the Commissioner of Taxation, the following exchange occurred:

“And I think your evidence is that you first became aware of this document sometime in March or April 2017, is that right?---Correct.

Now, on seeing that document, it must have occurred to you, Mr lncollingo, that the statement you had made to the ATO in November 2015 to the effect that there were no amendments to the trust was incorrect, is that right?---Yes.

You didn't take any step to correct that statement with the ATO, did you?---No. At that - at that point in time, because this was post the position paper being put forward from the ATO. We engaged Jason Green and – and after that ..... to deal – to deal with this matter.

Well, leave aside that - - -?---Yes.

- - - Mr lncollingo, you didn't write to the ATO saying anything to the effect that, "What I had said in my letter of November 2015 on behalf of Mr Demian was incorrect." You didn't write any such letter, did you?---No. No, I didn't.

Do you agree that your obligations of honesty and integrity required you to do so?---That's a fair comment, yes.”3 [3Transcript of cross-examination, 16 June 2020, P 115.]

Attachment 18. Transcript of Mr lncollingo’s cross-examination dated 16 June 2020.

112    The transcript of those parts of Mr Incollingo’s cross-examination that were covered by the s 128 certificate and information derived from that cross-examination needed to be kept away from the Conduct Committee, which is what ultimately happened. The final submission that was presented to the Conduct Committee omitted:

(a)    the former [17], [18], [32], [36] and [44] of the draft submission, including footnotes 1-3, which referred the proceeding before Davies J and the evidence given by Mr Incollingo in cross-examination, parts of which had been reproduced; and

(b)    the former Attachments 17, 18 and 19 to the draft submission, being the transcript of the proceeding before Davies J on 15 and 16 June 2020 (including Mr Incollingo’s evidence in cross-examination) and her Honour’s judgment.

113    That said, none of that additional excised material added much at all to the overall picture. It was a slight addition to what had been discovered in the ATO investigation prior to Mr Incollingo giving evidence in cross-examination before Davies J, namely going, in a very limited way, to his asserted state of mind. As such it was, contrary to Mr Incollingo’s contention, something that I am satisfied was easily able to be separated from the rest of the material in the draft submission in the mind of an investigator, and also in the mind of Mr Campbell when presenting the final submission to the Conduct Committee. It was not necessary for the investigators to parse their minds to be able to determine how they had been assisted by access to the material covered by the s 128 certificate, and no chain of inquiry or like mental process is at all apparent, or arguably even really possible, given the narrow scope of the material covered by the s 128 certificate.

114    The limited impact of the material covered by the s 128 certificate was made clear during the cross-examination of Mr Campbell, after he was taken to four short passages in the cross-examination of Mr Incollingo before Davies J:

So those answers would have greatly assisted you then, in your investigation, would they have not?---I don’t – I don’t think they would have greatly assisted, no.

But you would have been aware of what his answers would be if he was asked those questions in his investigation, though?---I think, at this time, he had already responded to the notice of investigation, essentially confessing. This was relevant, but I didn’t think it was some – a smoking gun or anything. I thought it was relevant and should be included.

115    A short time later Mr Campbell was asked about the decision to remove the material covered by the s 128 certificate rather than the decision not to terminate the investigation as requested by Mr Incollingo’s solicitor:

And so, instead, you decided the best way to deal with the issue was just to remove the transcript from the BCC submission that had already been provided and to remove any references that you had put in the submission to the transcript. Is that pretty much it?---Yes.

But you didn’t reconsider any of the allegations, did you?---Well, I thought that the transcript of cross-examination was sort of relevant but useless in that it just said the same things that had been said all the way through. And that’s why the BCCs submission was exactly the same after I had removed that evidence because it didn’t say anything in unique that wasn’t already said in statutory declarations and elsewhere.

Right. But Mr Incollingo, in statutory declarations, didn’t make the admissions that I took you to earlier, did he?---I think he did. My impression all the way through is that he has this argument in response to these allegations where he says, “I’m a good guy and I was just recreating these documents to genuinely reflect what I thought they ..... look like.” I think that’s the case that I’ve seen from 2018 through to now.

116    I accept that evidence as being an accurate reflection of the excerpts to which Mr Campbell was taken. Indeed, I consider that no part of the transcripts of the cross-examination of Mr Incollingo that Mr Campbell was taken to took things much further than was revealed about Mr Incollingo’s conduct by the judgment of Katzmann J, Mr Incollingo’s 23 October 2019 affidavit, or his own initial response by email to the notice of the Board’s investigation sent by him on 24 May 2021, which attached his written response, the order discharging the freezing orders and his 18 October 2018 statutory declaration.

117    While the answers Mr Incollingo gave in cross-examination did not reflect well on his attitude to his conduct, they added nothing of substance to what could readily be shown had taken place without any reference to any of the material that was covered by the s 128 certificate, or could conceivably have been derivatively obtained from the use of that material.

118    Mr Incollingo’s provable conduct, without any reliance on his cross-examination evidence covered by the s 128 certificate, amounted prima face to committing the criminal offence of using a forged document, a point I made at the hearing in this proceeding that was accepted by his senior counsel: see also s 145.1, Criminal Code (Cth). His state of mind would have been important for such a proceeding, because proof of a criminal fault element is indispensable. The s 128 certificate protected him from what he said about his conduct and his state of mind being used against him in such a criminal proceeding.

119    The reference that Davies J made at [112] to “original minutes” and “from day one” (recorded in the transcript as “from day 1”) from parts of the evidence of Mr Incollingo in cross-examination, being the only parts of the cross-examination evidence covered by the s 128 certificate additional to his affidavit evidence and which featured in Davies J judgment, was not referred to in either the draft submission or the final decision. While it is true that the transcripts themselves were annexed to the draft submission (but not to the final submission), I readily infer that the parts of that transcript relied upon in support of the submission made to the Conduct Committee were those extracted in the draft submission at [32], [36] and [44], and that the transcripts were annexed for completeness, should the Conduct Committee have wanted to consider source material, if they had ever received that submission, which they did not.

120    The final submission that did go before the Conduct Committee had removed from it altogether the former [17], [18], [32], [36] and [44] of the draft submission, and the formerly annexed transcripts for the two days upon which Mr Incollingo was cross-examined, and the formerly annexed unredacted copy of Davies J’s judgment, being the material which Mr Incollingo contends was material protected from use or derivative use by the s 128 certificate. While it is true that the allegations and submissions beyond that were retained, on careful reading and comparison between the draft submission and the final submission, it is clear that the excised portions were additional to what could be gleaned from the remaining material that had always been there, and was not protected. While in many cases it may not be possible to separate out the influence of material that needed to be kept away from a decision-maker, this was not such a case. I am comfortably satisfied that there was no residual contamination. The contrary has not been demonstrated.

121    As already observed, the excised portions really added nothing much of substance to the draft submission. The real vice for Mr Incollingo was his conduct in directing and supervising the creation of the backdated documents to make them seem authentic, and sending them to the ATO in response to the s 264 notice. That much was clear from his own affidavit. He sought to give an implausible and benign explanation for this conduct, being merely to reflect a state of affairs that he believed had always existed, albeit by the use of forgeries. The value to him of the s 128 certificate lay in the reason it was sought in the first place: to protect Mr Incollingo from his cross-examination evidence being used to prosecute him for a serious criminal offence arising from his conduct. It appears to have worked in his favour in achieving that objective.

122    The Investigation Decision was made much earlier on 11 May 2021, overtly entirely upon the basis of Katzmann J’s judgment. Nothing to the contrary has been proven. Indeed, at that time, although Davies J’s judgment was publically available, it may be doubtful that it was covered by the s 128 certificate, but in any case, assuming in his favour that it was so covered, that is not to the point in relation to the validity of the antecedent May 2021 Investigation Decision which did not rely upon the later judgment.

123    While the draft submission to the Conduct Committee, which was never provided to that committee, contained certain details of the s 128 certificate material summarised above, and attached Davies J’s judgment and the transcripts of Mr Incollingo’s cross-examination, the transcripts, any extract from them and any comment about them, and the Davies J judgment, was quarantined from the Conduct Committee. Mr Incollingo relies upon internal discussions reflected in the case plans during the investigation phase before the Board, but those were either about the decision of Davies J, only touching lightly on the cross-examination on the backdating conduct, or about the cross-examination evidence transcripts obtained much later, which added no real substance to what had taken place, largely because it was all set out in Mr Incollingo’s 23 October 2019 affidavit, and in turn substantially, but not exhaustively, in his earlier 16 October 2018 statutory declaration.

124    The alleged taint contrary to the protection provided by the s 128 certificate and the terms of s 128(7) of the Evidence Act has not been established. It follows that ground 1 must fail.

Ground 2 – improper exercise of power in making the Sanction Decision

125    No separate argument of substance is advanced by Mr Incollingo in relation to the Sanction Decision, although some peripheral arguments are advanced which I consider go nowhere, as effectively submitted by the Board. The thrust of the main argument, upon which Mr Incollingo needed to succeed to obtain any part of the relief he sought, is that referred to above of the alleged taint of the draft submission being carried forward into the final submission, and thus, into the deliberations and decision of the Conduct Committee. I have already found that this is not what took place. I am therefore satisfied that the Conduct Committee’s decision was made free of any taint by the use of any material covered by the s 128 certificate or from any derivative material. That was achieved by the careful steps the Mr Campbell took.

126    There is no evidence that any ultimate decision-maker in relation to the impugned decisions ever saw Mr Incollingo’s evidence in cross-examination before Davies J’s judgment, nor the relevant portions of her Honour’s judgment. I am left with an evidentiary position that aligns with the caution expressed by Mr O’Neill in his 5 November 2020 email. It is unclear why the caution expressed by Mr O’Neill in that email was departed from for a period of time. Perhaps it was overlooked. But it is not apparent how that departure, followed as it was by the careful excision of the protected material, original and derivative, could possibly have made any difference to the Investigation Decision, the Sanction Decision or the Related Decisions, or the conduct of the investigation and in particular the assembly of the material that ultimately went before the Conduct Committee.

127    Mr Incollingo’s case faced an immediate hurdle by the absence of any reference in the material placed before the Conduct Committee, or in its decision, either to the oral evidence in cross-examination that Mr Incollingo gave before Davies J, or to her Honour’s judgment, especially read in the context of Mr O’Neill’s earlier cautionary note in his 5 November 2020 email referred to above. That hurdle is especially steep when due regard is had to the fact that Mr Incollingo made admissions about the creation and backdating of the two false documents that he provided to the ATO as set out in his 2018 statutory declaration, and in his 2019 affidavit, both well before his June 2020 evidence in cross-examination and re-examination before Davies J. That is a substantially different situation to the same or substantially the same evidence being given or obtained after material covered by a s 128 certificate. Mr Incollingo failed to surmount the necessary hurdles of showing contamination of the Sanction Decision by the use or derivative use of s 128 certificate material in the process of making that decision. I am satisfied that no such contamination took place. Accordingly, it was not proven that there was anything unreasonable in the Sanction Decision or the process leading up to it. I find that this was not what occurred.

128    It follows that ground 2 must also fail.

Ground 3 – breach of the rules of natural justice and procedural fairness

129    This ground depends upon it being established that direct and/or indirect use of material covered by the s 128 certificate took place as proscribed by s 128(7) in making the Investigation Decision, in the conduct of the investigation, in the making of the Sanction Decision, or in making the Related Decisions. This has not been established. In the case of the Investigation Decision and the conduct of the investigation, s 128(7) did not apply, but even if it had applied, the Investigation Decision itself was not affected by any such use or derivative use.

130    The s 128 certificate material was considered during the course of the investigation process, and had been contemplated to be provided to the Conduct Committee. However, the Board, via Mr Campbell, took heed of the objection raised by Mr Incollingo’s solicitors and thoroughly excised material covered by the s 128 certificate from the final submission provided to by the Conduct Committee, including derivative material. I am satisfied that there was no use or derivative use of such material by that committee. It follows that there was no unreasonableness established as to any of the impugned decisions. With that conclusion, the basis for the allegation of a denial of procedural fairness falls away, noting that this obligation that was not shown to apply to the investigation process per se, except to the extent of giving Mr Incollingo an opportunity to be heard and make submissions in relation to what was to be placed before the Conduct Committee.

131    There was no obligation to terminate the investigation and the very provision of the draft submission not only gave Mr Incollingo an opportunity to be heard, but that opportunity was taken and his concerns properly addressed. No breach of the rules of natural justice or any denial of procedural fairness was established. That finding extends to collateral complaints that Mr Incollingo advances that I consider go nowhere in the sense that I do not accept that any of them could realistically have made any material difference to conduct of the investigation or to the end results of the findings of contravention by the Conduct Committee and making of the Sanction Decision.

132    It follows that ground 3 must also fail.

Conclusion

133    As all three grounds of review have failed, the originating application must be dismissed with costs. As a consequence, orders 1, 2 and 3 made by Thawley J on 24 December 2021, by which his Honour stayed the decisions of the Conduct Committee finding that Mr Incollingo had contravened the TAS Act and imposing a sanction including his registration as a tax agent, a stay of publication of the reasons for those decisions, and a stay of notification to the Commissioner of Taxation of those decisions, must be discharged with immediate effect.

Associate:

Dated:    1 August 2023