Federal Court of Australia

Gumm v Commissioner of Taxation (No 3) [2025] FCA 927

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the respondent’s costs of the application, to be taxed or agreed.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    By an amended interlocutory process filed 27 March 2025 (the Application), Mr Darryl Gumm seeks orders pursuant to s 7 of the Foreign Evidence Act 1994 (Cth) (the Act) that he be entitled to give evidence on commission in the United Kingdom (UK), the United States or Hong Kong. The Application proposes four alternative forms of order. The variations between such need not be considered at this juncture, save to note that they are advanced in order of preference.

2    During the hearing, the parties acknowledged that the UK was the most appropriate place for the taking of evidence on commission if that course were to be followed. That being so, there is no need to consider the circumstances which would arise were the Court to consider an order for the taking of evidence on commission in Hong Kong or the United States.

The factual substratum of the Application

3    On 26 March 2025, a statement of agreed facts was filed with the Court (pursuant to s 191 of the Evidence Act 1995 (Cth)). The facts agreed between the parties are as follows:

1.    The Applicant is an Australian citizen. From the late 1990s to 2019 the Applicant lived and worked in Australia.

2.     The Applicant has been a resident of Thailand for more than five years. During that period he has travelled internationally including for holidays. In the 2024 calendar year, he left Thailand to travel to Vietnam for a holiday.

3.     The Applicant is physically able to come to Australia for the hearing of this proceeding.

4.     The Applicant is unwilling to come to Australia for the hearing of this proceeding.

5.     The Respondent has obtained a judgment in the NSW Supreme Court for the majority of the tax debt that is at issue in this proceeding.

6.     As at 19 February 2025, the Applicant owed the Respondent $23,800,530.69, on which interest continues to accrue. These unpaid and overdue debts are:

a.     $23,706,241.79 which was the amount owed in respect of the judgment debt ordered by the Supreme Court of New South Wales (mentioned above) and ensuing interest;

b.     $10,055.90 which was the amount owed for PAYG instalments;

c.     $4,500.20 for tax levied pursuant to Division 293 of the Income Tax Assessment Act 1997 (Cth); and

d.     $79,732.80 being the remainder of a costs order made by the Supreme Court of Samoa on 17 December 2021 against the plaintiffs (which included the Applicant) in proceedings brought against the Respondent.

7.     The Applicant has been aware of these unpaid and overdue debts for some time, and since at least August 2023.

8.     The Applicant has served one affidavit upon which he says he intends to rely at the final hearing, which was sworn 29 November 2024 and comprises 71 pages with an additional exhibit of 655 pages.

9.     In paragraphs 246 and 247 of his affidavit sworn 29 November 2024 which has been served in this proceeding, the Applicant states the following:

“246.    During a short period of time in 2001 (I have checked the date) Vanda organised two loans to entities associated with me. One loan was to Darryl Gumm Family Trust and the other loan was to a company called Liztine Pty Ltd. I am not certain which transaction occurred earlier in time.

247.     The reason I wanted to borrow money through Darryl Gumm Family Trust is I identified an apartment I thought was a good investment property. The apartment was 4168/1 Ross Street, Benowa, in Queensland.”

10.     The reference to “2001” in the first line of paragraph 246 set out in the preceding paragraph, should be a reference to “2011”.

11.     The Applicant’s legal team consists of persons who principally practice in NSW and Victoria.

12.     The Respondent’s legal team consists of persons who principally practice in NSW and Victoria.

The relevant legislative framework

4    The Application is brought under s 7 of the Act. That section relevantly provides:

7     Orders for taking evidence abroad

(1)     In any proceeding before a superior court, the court may, if it appears in the interests of justice to do so, on the application of a party to the proceeding, make an order, relating to a person outside Australia:

(a)     for examination of the person on oath or affirmation at any place outside Australia before a judge of the court, an officer of the court or such other person as the court may appoint; or

(b)     for issue of a commission for examination of the person on oath or affirmation at any place outside Australia; or

(c)     for issue of a letter of request to the judicial authorities of a foreign country to take the evidence of the person or cause it to be taken.

(2)     In deciding whether it is in the interests of justice to make such an order, the matters to which the court is to have regard include the following:

(a)     whether the person is willing or able to come to Australia to give evidence in the proceeding;

(b)     whether the person will be able to give evidence material to any issue to be tried in the proceeding;

(c)     whether, having regard to the interests of the parties to the proceeding, justice will be better served by granting or refusing the order.

5    It is not in issue that this Court is a “superior court” for the purposes of s 7: s 3(1) of the Act.

The operation of section 7 of the Act

6    Section 7(1) of the Act grants the Court a discretion to make an order for, in broad terms, the taking of evidence at any place outside Australia:

(1)    on the application of a party to the relevant proceeding;

(2)    if the subject of the order is “a person outside Australia”; and

(3)    if it appears in the “interests of justice” to do so, having regard to (at least) those matters codified in ss 7(2)(a) – (c) of the Act.

7    Several observations may be added to that general proposition.

8    First, the taking of evidence on commission is not a new development in the law: Indochina Medical Co Pty Ltd v Nicolai [2013] NSWCA 436 [37] – [40].

9    Second, s 7 of the Act is a substantial re-enactment of sections 7v(1) – (2) of the Evidence Act 1905 (Cth): Replacement Explanatory Memorandum, Foreign Evidence Bill 1994 (Cth), 3 – 4 [12] – [14], 1 [2]; Rawson Finances Pty Ltd v Commissioner of Taxation [2016] FCAFC 95 [47]: which, in turn, were predicated upon the common law existing circa 1985: Explanatory Memorandum, Evidence Amendment Bill 1985 (Cth), i [2]. For instance, the drafting of s 7v(2) (now s 7(2) of the Act) bears homogeny with the criterion identified in Hardie Rubber Co Pty Ltd v General Tire & Rubber Co (1973) 129 CLR 521 (Hardie Rubber) as relevant to the exercise of the Court’s discretion to make an order of the nature now sought: see Nicolai v Indochina Medical Co [2013] NSWSC 654 [23]. There, it was said by Gibbs J (at 528) that:

The party seeking an order for the examination of a witness abroad must show to the satisfaction of the Court or Justice that the witness is out of the jurisdiction of the Court, that his evidence is material and that his attendance within the jurisdiction cannot be procured; if these matters are established, as a general rule the letter of request ought to issue …

(citing Willis v Trequair (1906) 3 CLR 912, 919 (Willis); Williams v Mutual Life Association of Australasia (1904) 4 SR(NSW) 677, 680).

10    But s 7v of the Evidence Act 1905 (Cth) was not “intended as a codification of those principles”: Explanatory Memorandum, Evidence Amendment Bill 1985 (Cth), i [2]. Therefore, a measure of caution must be observed in relying upon the “general rule” identified in Hardie Rubber: see Australian Federation of Consumer Organisations v Tobacco Institute (1990) 95 ALR 444, 449 (Tobacco Institute). In a similar vein, it should not be overlooked that that “rule” was concerned with the issuance of letters of request (s 7(1)(c) of the Act; cf the relief now pressed).

11    Third, the operation of s 7 of the Act is best understood to comprise multiple layers of judicial inquiry (and discretion). The Court’s task is to identify whether it is in the “interests of justice” to make an order under ss 7(1)(a) – (c). To do so, it must consider those matters in ss 7(2)(a) – (c). But, as the chapeau to that section implies, the inquiry is not so limited; indeed, the Court may look beyond the considerations in ss 7(2)(a) – (c) to inform its assessment: BCI Finances Pty Limited v Commissioner of Taxation [2012] FCA 855 [3]. Having done so, and even “if it appears in the interests of justice” to make an order under s 7 of the Act, the Court retains, by the chapeau to that section, a residual discretion to refuse to make the order: Tobacco Institute 449; see also Commissioner of Taxation v Oswal (No 5) [2015] FCA 1504 [58] (Oswal (No 5)).

12    Despite that, there must exist some limit to the circumstances in which a Court may reasonably arrive at such a conclusion: see Hardie Rubber 528. So much follows from the drafting of s 7(2) of the Act, which (a) obliges the Court to consider “justice” inter partes (s 7(2)(c)); and (b) does not exhaustively define the considerations relevant to the assessment of the “interests of justice”. That broad, evaluative framework reserves, to the decision-maker, a discretion to address a theoretically limitless array of factors: see LexisNexis, Halsbury’s Laws of Australia, 325 Practice and Procedure, ‘Trial’ [325-8195] and [325-8230]: such that it is difficult, in the abstract, to envisage how some factor falling beyond the ambit of such inquiry could possibly outweigh one’s conclusion as to what best advances “justice”: Clancy v Australian Securities and Investments Commission [2025] FCA 220 [28], [33]. Nonetheless, the possibility remains.

13    Fourth, and though it is not determinative in this case, it might be fairly assumed that the party who seeks the making of an order under s 7 of the Act carries the onus of establishing that it is in the “interests of justice” to do so and, in turn, that the Court’s discretion should be exercised under that provision: see Lawson v Vacuum Brake Company (1884) 27 Ch D 137, 141 – 142; Hardie Rubber 528. In years gone by, it has been said that that onus is somewhat heavier where it is the plaintiff who applies to have their evidence taken on commission: see, eg, Coch v Allcock & Co (1888) 21 QBD 178, 181; Willis 923 – 924, citing Ross v Woodford (1894) 1 Ch 38, 42. One justification proffered for such a rule is that a plaintiff who consciously invokes the jurisdiction of a court should, in the ordinary course, be bound to abide by the consequences of that choice – including presenting before the court in question: see, eg, Emanuel v Soltykoff (1892) 8 TLR 331. Prima facie, that understanding may retain some degree of cogency today.

14    The findings in Priestly v Hardwood (unreported, Sup Ct, Tas, Zeeman J, 14 November 1996) are not strictly to the contrary. In that instance, Zeeman J, on the application of four American plaintiffs, made orders under the Evidence Act 1910 (Tas) that their evidence, as well as that of a number of witnesses, be taken in California. At issue was the liability of the defendants for the operation of a jet boat on the Derwent River. Implicit in his Honour’s reasoning was an understanding that, in any application for evidence to be taken abroad, the position of an applicant beyond the effective compulsion of the Court was fundamentally different to that of an applicant that is a party to the proceedings. In that sense, it was significant that (a) all but one of the (eight) proposed witnesses were located in California; and (b) a majority of witnesses were unwilling to travel to Tasmania (no such finding was made vis-à-vis the plaintiffs):

… If the plaintiffs are able to give their evidence in California they would not incur the cost of travelling to Tasmania and of accommodation. If the application only concerned them, such a saving in costs might not be sufficient to justify the making of an order. However, if an order is made as to the other intended witnesses, the balance of convenience suggests that it would be appropriate to take the plaintiffs’ evidence at the same time.

15    This reasoning was endorsed on appeal: Harwood v Priestley (1997) 6 Tas R 383: as well as, albeit implicitly, by several other courts: see, eg, Erceg v Erceg [2016] NZAR 85 [28] (Erceg); Federal Commissioner of Taxation v Seymour (2015) 65 AAR 443, 463 [101].

Should the Application be granted?

Consideration (1): Is the Application an “application of a party to the proceeding”?

16    In November 2022, Mr Gumm filed a “Notice of appeal against appealable objection decision under section 14ZZ Taxation Administration Act 1953 (Cth)”. By that notice, he challenges certain tax liabilities assessed by the Commissioner of Taxation (the Commissioner) between 2009 and 2017. He now seeks, by the Application, to adduce his evidence outside of Australia. In that sense, it is self-evident that the Application is an application of a party to the proceeding.

Consideration (2): Is Mr Gumm “outside Australia”?

17    It is an agreed fact that Mr Gumm is a resident of Thailand. It is also agreed that he is unwilling to come to Australia for the hearing of this proceeding. It thereby follows, and at no point was it disputed, that Mr Gumm is a person who is “outside Australia”.

Consideration (3): Is it in the “interests of justice” to grant the Application?

18    The core issue is whether it is in the interests of justice for the Court to make an order that Mr Gumm be able to give evidence on commission. That is the condition on which the discretion in the chapeau to s 7(1) of the Act is enlivened and, in ascertaining whether that circumstance exists, the Court is to address the considerations in ss 7(2)(a) – (c).

Is Mr Gumm “willing or able to come to Australia to give evidence”?

19    The consideration in s 7(2)(a) of the Act is disjunctive: is Mr Gumm willing or able to come to Australia to give evidence in the proceeding? While the first alternative is couched in terms of a subjective state of mind, it poses a question that, much like the second alternative, is to be answered by reference to objective facts. Here, it is agreed that the applicant “is unwilling to come to Australia for the hearing of this proceeding”. That unwillingness is, in the words of Mr Hyde Page for the applicant, referable to a fear that he “will be lawfully detained”.

20    The language of s 7(2)(a) imposes no requirement that the stated “unwillingness” be reasonable or justifiable: see Bell Group Ltd (in liq) v Westpac Banking Corporation (2004) 208 ALR 491, 520 [146] (Bell Group). Instead, all that is required at this stage of the inquiry is for the Court to be satisfied that, as a matter of fact, the relevant person is unwilling to give evidence in the proceeding in Australia. This may be because, for example, of an aversion to flying or the length of travel involved or the need to attend to personal or business interests or one’s physical or mental health or their perceived degree of involvement in, or attitude towards, the proceeding: see, eg, Bell Group 519 – 520 [128] – [147]; Australian Securities and Investments Commission v Rich (2004) 49 ACSR 578, 591 [54]; Flash Lighting Company Ltd v Australia Kunqian International Energy Co Pty Ltd (No 2) [2018] VSC 821 [75]. Of course, and as noted in Bell Group (at 520 [146]), it may be that the circumstances proffered for one’s unwillingness to travel are so incredible that they undermine the veracity of the statement of unwillingness.

21    That, however, is not the case here. The reasons given for Mr Gumm’s unwillingness to return to Australia were not suggested to lack bona fides. As such, it may be said that Mr Gumm is unwilling to come to Australia to give evidence in the proceeding (see s 7(2)(a) of the Act).

Will Mr Gumm be able to give evidence material to any issue to be tried?

22    The consideration in s 7(2)(b) of the Act might reasonably be assumed to be answered in the affirmative in circumstances where the plaintiff (or defendant) themselves are the subject of an application under s 7(1) of the Act. Quite plainly, and as was accepted by Dr Jaques for the Commissioner, Mr Gumm will be able to give evidence material to live issues in the proceeding which he has commenced. Indeed, Dr Jaques identified that Mr Gumm “is the principal witness in the proceeding” who, in turn, would be the subject of extensive cross-examination.

23    In those circumstances, it can be accepted that Mr Gumm, the applicant, will be able to give evidence material to issues to be tried in the proceeding (see s 7(2)(b) of the Act).

24    Having reached that conclusion (as well as those at supra [17] and [21]), the “general rule” in Hardie Rubber would suggest that the Application should be granted. Indeed, that appears to be the position adopted by Mr Hyde Page, who advanced the following submission:

2. The basic reason why the Court should grant the Applicant’s request is that the Applicant is able to give evidence that is highly relevant to the live issues in the proceeding, and the Applicant is not willing to travel to Australia to give the evidence.

3. There is substantial authority which says that, when these criteria are met, a court should ordinarily grant the request for an overseas hearing. …

25    That, however, goes too far. The terms of s 7 of the Act do not create a rebuttable presumption in favour of the applicant when the Court is satisfied of their (a) unwillingness or inability to come to Australia; and (b) ability to give evidence material to the proceeding; although those factors support the conclusion that the making of the order sought is in the “interests of justice”, that inquiry must also account for “whether, having regard to the interests of the parties to the proceeding, justice will be better served by granting or refusing the order” (s 7(2)(c)) (and may, indeed, encapsulate a host of other considerations). In that sense, the elements of the “general rule” may be said to be necessary, but insufficient, factors of the inquiry in s 7 of the Act.

26    As such, it is inappropriate to approach the inquiry in s 7(2)(c) of the Act upon the footing that the Application will likely be granted. Instead, that inquiry is but another factor that is to be taken into account before any conclusion as to the “interests of justice” can be reached.

Factors that bear upon “justice” inter partes (or the “interests of justice” generally)

27    The consideration in s 7(2)(c) of the Act is a broad evaluative one. At a primary level, it directs attention to the respective parties’ interests and how justice is to be best served between them, though it must be kept steadily in mind that the consideration arises in the context of seeking to identify the “interests of justice” more generally. If the Application is granted, Mr Gumm will be able to give evidence before the Court without fear of indefinite detention in Australia. That is, quite plainly, in the interests of Mr Gumm. But what, if anything, is to be made of the motivation that undergirds Mr Gumm’s stated unwillingness to return to Australia?

28    On one view, being that advanced by Mr Hyde Page, it would be an unusual case if:

… in light of section 7, subsection (2)(a), … the court were to allow a decisive consideration to become the reasons why Mr Gumm isn’t willing to give evidence in Australia. The interpretive maxim that best seems to encapsulate it is expressio unius est exclusio alterius. In other words, after the issue of unwillingness has been dealt with in section 7(2)(a) – and it has been dealt with in a way that indicates one should not get into a normative assessment of the reasons for the unwillingness – the court should be very cautious about getting into that sort of analysis elsewhere.

29    The maxim expressio unius est exclusio alterius is a valuable servant, but a dangerous master: Colquhoun v Brooks (1888) 21 QBD 52, 65. It must “always be applied with care”: Houssein v Department of Industrial Relations and Technology (1982) 148 CLR 88, 94. Here, it has no application. Section 7(2) of the Act reserves to the decision-maker a broad discretionary power to evaluate the “interests of justice” provided due consideration is afforded to those matters in ss 7(2)(a) – (c). Thus, it may be said that whilst the decision-maker must consider whether, as a matter of fact, the applicant is “willing or able to come to Australia”, it may also consider, in its assessment of justice inter partes or the “interests of justice” more broadly, the motivation that undergirds the stated unwillingness. Indeed, if an applicant is unwilling to give evidence in Australia for an unjustifiable reason, that is, objectively, relevant to the question of whether the “interests of justice” would be advanced by the making of an order under s 7(1) of the Act.

30    In other words, the ambit of the inquiry under s 7(2) of the Act encompasses, in the appropriate circumstance, the motivation that informs the unwillingness of a litigant to give evidence in a proceeding in Australia. But to what extent does such sway the “interests of justice”? As will be seen, that consideration touches upon aspects of both “justice” inter partes and the “interests of justice” generally; for brevity, it will be considered at the present juncture.

1.    Preliminary: Why is Mr Gumm unwilling to give evidence in Australia?

31    Mr Gumm, though he remains an Australian citizen, moved to Thailand in 2019.

32    In November 2022, he invoked the jurisdiction of the Court seeking to exercise his rights under the Taxation Administration Act 1953 (Cth) (the Taxation Administration Act) in relation to certain assessments for income tax which have been made against him. Although he is able to come to Australia, he is not willing to do so. The reasons that were said to inform Mr Gumm’s unwillingness were canvassed in the written reply of Mr Hyde Page in the following terms:

The Applicant is unwilling to come to Australia because he fears (and the Respondent does not deny) that:

(i)    The Respondent will issue a Departure Prohibition Order (‘DPO’), which will permanently confine the Applicant to Australia, and prevent the Applicant from returning to Thailand where he lives with his partner;

(ii)    The only way the Applicant will then be able to leave Australia is by providing security to the Respondent for something in the order of $7.6 million towards the tax debt that the Applicant believes has been wrongly imposed, the correctness of which the Applicant is challenging in this proceeding; and

(iii)    Some other law enforcement agency may take action against the Applicant for reasons connected to the asserted tax debt. For example, the CDPP may intend to bring a prosecution based on these allegations.

33    In this context, it must be noted the Commissioner has offered, on several occasions, to furnish Mr Gumm with an undertaking that he will not be made the subject of a departure prohibition order (DPO) provided he places the primary taxation liability ($7,661,492.86) into a secured monies account. There can be no doubt that the power to issue a DPO is a tool available to the Commissioner to uphold the integrity of the Taxation Administration Act: see, eg, Troughton v Deputy Commissioner of Taxation (2008) 166 FCR 9, 17 [22]: and no criticism can be made of his preparedness to couch its issuance upon the satisfaction of some particular condition.

34    Mr Gumm has rejected those proposals. Nonetheless, he evinces a willingness, as per his fourth alternative order, to pay the same amount “as security for the tax liability that is the subject matter of this proceeding” for the purposes of securing an order for the taking of his evidence on commission. Though it is true that that proposal is advanced as merely one alternative that the Court might perceive to be appropriate, it is sufficiently apparent that Mr Gumm is prepared to secure that amount as the quid pro quo of obtaining an order that he be permitted to adduce his evidence on commission, but is not prepared to do the same to secure an undertaking from the Commissioner not to issue a DPO upon his return to Australia.

35    In this respect, it is to be recalled that Mr Gumm is unwilling to return to Australia because of a fear he would, in the words of Mr Hyde Page, “be lawfully detained by either the Respondent or some other law enforcement authority” (emphasis added). In an affidavit filed 15 August 2024 (the Gumm Affidavit), Mr Gumm claims that such fear is derivative of the fact that other clients of his former tax adviser, Mr Vanda Gould, have been charged with offences regarding tax evasion. Though not expressly stated, this seems to carry with it the implication that the arrangements of Mr Gumm bear semblance to those of certain other clients of Mr Gould. There was, however, no analysis of this point and it need not be the subject of further consideration.

36    That being so, there was a dearth of evidence to support the assertion that, should Mr Gumm travel to Australia, there exists a “strong possibility” he will be arrested and charged with tax related offences. There is no evidence before the Court to indicate that any Government agency or department other than the respondent would have any reason(s) to seek to detain Mr Gumm. Reliance on that which has occurred in relation to others is unpersuasive if, as here, the nature of their conduct (and its relation to that of Mr Gumm) is unclear. Even if such persons retained the same tax adviser, it cannot merely be assumed, in the absence of any attempt to analyse their tax arrangements, that they were sufficiently similar to the arrangements of the applicant.

37    In sum, the assertion that Mr Gumm fears lawful detainment by some “other” law enforcement authority is, on the evidence before the Court, unsupported. While such a fear might reasonably be thought to arise vis-à-vis the Commissioner, he has undertaken not to issue a DPO if Mr Gumm places an amount equivalent to the primary tax liability (being approximately one-third of his overall tax liability) into a secured monies account. In the circumstances, that is a reasonable offer and sufficient to overcome the concerns raised by Mr Gumm. Though he may have a subjective fear in relation to other undefined enforcement agencies, there is insufficient evidence before the Court to conclude that their intervention is, objectively, a real possibility.

2.    Does a (reasonably-held) fear of being made the subject of a DPO justify or support the making of an order that evidence be taken on commission?

38    In his written outline of submissions, Mr Hyde Page suggested that:

Reasons given by overseas witnesses for being unwilling to give evidence in Australia, which courts have treated as sufficient to warrant an overseas hearing pursuant to the [Act] (including under the ‘letter of request’ procedure) have included: … fear of Australian law enforcement agencies (Oswal (No 5)).

(Emphasis added).

39    Oswal (No 5) does not stand for any such proposition. There, Gilmour J was confronted by an application for the testimony of Mr and Mrs Oswal to (a) occur by video link pursuant to s 47A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act); or (b) be taken by the Court on commission in Hong Kong pursuant to s 23 of the FCA Act and s 7 of the Act (at [2]). The basis of the relief sought was an apprehension, upon the part of the Oswals, that they would be the subject of DPOs if they returned to Australia (at [5]). His Honour dismissed both forms of relief sought for largely identical reasons (at [75]). Relevantly, in deciding whether to exercise the discretion conferred by s 47A of the FCA Act, his Honour was prepared to assume (at [44]):

… for the purposes of this application, that a factor in the mix of relevant factors for consideration, is that each of Mrs and Mr Oswal may be the subject of DPOs should they come to Australia to give evidence at the trial of this action.

40    That assumption, and the conclusion reached by Gilmour J, are inconsistent with the suggestion that fear of Australian law enforcement agencies is sufficient to justify the issuance of an order of the nature that is now sought. So much is borne out in Seymour v Federal Commissioner of Taxation (2016) 241 FCR 361 (Seymour). There, the Full Court was concerned with whether the primary judge had erred in setting aside a decision of the Administrative Appeals Tribunal (the AAT) to allow certain taxpayers to give evidence by video link from Mauritius. Amongst other things, it was held that, first, the reasons for a party’s refusal to come to Australia to give evidence in a proceeding may be relevant to the exercise of the AAT’s discretion under s 35A of the Administrative Appeals Tribunal Act 1975 (Cth): at 364 [15], 369 – 370 [41] – [42], 389 – 390 [106]: and second, the desire of overseas litigants to remain out of reach of Australian authorities does not support the grant of an order that their evidence be taken by video link. To bear this latter conclusion out, it was said that such a desire (a) was, in itself (and at best), not material to the decision of whether to permit evidence by video link (per Griffiths J: 374 – 375 [58] – [64]; but see 377 [72]); (b) undermined administration of the Taxation Administration Act (and the wider public interest) and, therefore, was not a legitimate reason on which to base the exercise of the AAT’s discretion (per Siopis J: 365 – 367 [23] – [30]); and (c) would not always result in a favourable outcome for the overseas litigant (per Pagone J: 389 – 390 [106]).

41    In Seymour, reference was made to the decision of the House of Lords in Polanski v Condé Nast Publications Ltd [2005] 1 WLR 637 (Polanski). Mr Polanski was a French filmmaker. In 1977, he plead guilty before a Californian court to a charge of unlawful sexual intercourse with a girl aged 13 years. He fled to France before he could be sentenced. There, he was effectively beyond the grasps of the law enforcement agencies of the United States. Sometime thereafter, Mr Polanski commenced legal proceedings against the defendant in the High Court in London. During the course of such, Mr Polanski sought a pre-trial direction that he be allowed to adduce evidence by video link from France. His avowed reason for doing so was that the existence of an extradition treaty between the UK and United States was such that, if he attended in London, there was a risk that he would be detained and extradited: Polanski 647 – 648 [49], 656 [83].

42    That application succeeded at first instance, but was later reversed by the Court of Appeal: see Polanski v Condé Nast Publications Ltd [2003] EWCA Civ 1573. On appeal to the House of Lords, a majority of the Court (Lord Nicholls, Lord Hope and Baroness Hale) found in favour of Mr Polanski. The majority view was distilled by Lord Nicholls (at 644 – 645 [31] – [33]):

…. Despite his fugitive status, a fugitive from justice is entitled to invoke the assistance of the court and its procedures in protection of his civil rights. He can bring or defend proceedings even though he is, and remains, a fugitive. If the administration of justice is not brought into disrepute by a fugitive’s ability to have recourse to the court to protect his civil rights even though he is and remains a fugitive, it is difficult to see why the administration of justice should be regarded as brought into disrepute by permitting the fugitive to have recourse to one of the court’s current procedures which will enable him in a particular case to pursue his proceedings while remaining a fugitive. To regard the one as acceptable and the other as not smacks of inconsistency. If a fugitive is entitled to bring his proceedings in this country there can be little rhyme or reason in withholding from him a procedural facility flowing from a modern technological development which is now readily available to all litigants. For obvious reasons, it is not a facility claimants normally seek to use, but it is available to them. To withhold this facility from a fugitive would be to penalise him because of his status.

That would lack coherence. It would be to give with one hand and take away with the other: a fugitive may bring proceedings here, but his position as a fugitive will tell against him when the court is exercising its discretionary powers. It would also be arbitrary in its practical effect today. A fugitive may bring proceedings here but not if it should chance that his own oral evidence is needed. Then, despite the current availability of VCF, he cannot use that facility and a civil wrong suffered by him will pass unremedied.

… [T]he general rule should be that in respect of proceedings properly brought in this country, a claimant’s unwillingness to come to this country because he is a fugitive from justice is a valid reason, and can be a sufficient reason, for making a VCF order. …

43    That rule was rejected by Griffiths J in Seymour (at 376 – 378 [67] – [74]; see also the substance of the conclusion of Siopis J at 365 – 367 [22] – [30]), who instead preferred the approach that was expressed by Lord Slynn in dissent. His Lordship had noted (at 646 [40] – [41]) that the application brought by Mr Polanski raised (at least) two conflicting policy considerations:

… The first is that the court should not frustrate his accepted right to sue in the civil courts here by refusing a procedural step provided for by the Rules when there is no valid reason to do so. The second is that the civil courts should not take steps the effect of which is to frustrate or impede the due execution of the criminal procedure of another state with which the United Kingdom has an extradition treaty and under which if the appellant were in England the United Kingdom would be required to respond to a request for his extradition so that he could be sentenced and obliged to comply with any sentence imposed.

On the one hand thus if he comes here to give evidence and is extradited the criminal proceedings in the California court can continue, as in the interests of justice it is said they should. It was a serious offence which he admitted and he only avoided punishment because he had the wherewithal to flee, and did flee, the United States to live in a country from which he could not be extradited. On the other hand if he is allowed to give evidence by video link he will not be extradited, the criminal proceedings in California will not continue and he will avoid punishment. He will, however, be able to pursue his civil claim for libel in England. If he cannot give evidence by video link he will not realistically be able to come here to give evidence or he will be arrested and extradited. If he cannot give oral evidence in one way or another his case probably cannot be pursued effectively or perhaps at all.

44    His Lordship ultimately concluded (at 649 [56]) that:

Where a person convicted on his own admission flees the jurisdiction, it seems to me that in the absence of special factors compelling a different result, a video link conference may and should here be refused where the sole reason for asking for it is that he wishes to escape conviction or sentence in the country where he has commenced proceedings or to avoid extradition to another country for the same reason. The mere fact that the person cannot pursue proceedings here does not necessarily mean that a video link must or should be granted. The policy requirement of satisfying the criminal sentence is by no means less important than the desirability of his suing in libel for an allegation which is serious but no more serious than the criminal offence of which he has been convicted. The possibility of suing in France is a further contra-indication to any obligation to grant such a video link.

45    Griffiths J regarded that view as carrying “considerable force” though, ultimately, considered the circumstances of Polanski to be distinguishable from those that were then before the Court (at 377 [72]). Nonetheless, his Honour’s reasons reveal an understanding that, whilst there can be no doubt of the importance of preserving the rights of litigants to sue in civil courts, it does not necessarily follow that indulgences should be afforded to allow them to invoke such a right without observing the obligations that fall upon the shoulders of each and every citizen in our democracy (such as those prescribed by the Taxation Administration Act: Seymour 376 [67] – [68], 377 [70] – [73]). That general approach conforms with that of Siopis J (at 365 – 367 [23] – [30]) and should be adopted here.

46    There can be no doubt whatsoever that the ability of Mr Gumm to invoke his right of appeal under the Taxation Administration Act should be fiercely guarded. Nor should he be impeded from agitating any such appeal in the way that he and his legal advisers best see fit. However, that is not to say the Court should extend indulgences that, in effect, allow him to circumvent the operation and consequence of enacted laws. As the arbiter between the parties, the Court should not act to sanction the attempts of parties to foil the operation of the law; rather, it is for the parties to navigate the legal landscape in which they elect to litigate. Here, it is Mr Gumm who seeks to invoke the substantive and procedural laws of Australia to vindicate his rights; in so doing, he must take those laws as they are. In this way, the efficient and dignified operation of the Australian legal system is best preserved.

47    To this, it may be noted that Mr Gumm harbours fears of being “lawfully detained” (emphasis added). That is, there is no suggestion that the exercise of any power against him, were he to return to Australia, would be otherwise than in accordance with the administration of the laws of this country. That being so, there is no warrant to exempt him from their ordinary operation merely because they might operate in a way that is disadvantageous to him. He is, much like any other ordinary litigant, entitled to attend at the Court and give evidence in support of his appeal; the fact that he chooses not to because of his concerns about the laws of this country being applied to him in the usual course does not adversely affect the administration of justice.

48    In short, Mr Gumm is unwilling to return to Australia because of, in effect, a fear that he will be detained pursuant to the Australian taxation framework. That motivation is relevant to the interests of justice calculus that is prescribed by s 7(2) of the Act. It is not “sufficient” to justify the making of the Application. Nor does it support such a result. Indeed, having regard to the public interest in the due and proper administration of the Taxation Administration Act, it is a factor that ultimately weighs against the grant of the Application.

49    In drawing these conclusions, it is relevant that, at the time of the publication of these reasons, no Australian authority has approved the reasoning developed in Polanski: but see Rothe v Scott (No 3) [2016] NSWDC 151 [9] – [10]: though it is self-evident that the views of Griffiths J and Siopis J in Seymour are to the contrary (or otherwise inconsistent with it). Whilst it has curried favour in courts across the Tasman: see, eg, Commissioner of Police v Vincent [2015] NZHC 1548; Erceg: those decisions concerned the appropriateness of persons, who had not wilfully invoked the jurisdiction of the Court (cf Mr Gumm), giving evidence via audio-visual link (cf the orders that are now pressed under s 7 of the Act by the Application).

3.    Inconvenience to the respondent

50    It is undoubted that the grant of the Application would cause inconvenience to the respondent. While Mr Gumm offers to provide some indemnity vis-à-vis “the Respondent’s costs in relation to the examination” in two iterations of his proposed orders, that is far from a sufficient panacea for the difficulties that would be encountered. To set the scene, the factual issues between the parties are, on any view, substantial and their consideration will involve a correspondingly large degree of documentary evidence. It is likely that much will turn on the cross-examination of Mr Gumm, which, in the estimation of Dr Jaques, will take three days and prove “document heavy” (noting that it is said that the credit of Mr Gumm is a live issue on the pleadings filed).

51    In those circumstances, were the court to grant the Application, it is likely the Commissioner will be put at something of a disadvantage in the conduct of an important aspect of the trial. Two examples are telling. First, grant of the Application would require the respondent’s legal representatives to organise a complex cross-examination in a foreign country without the usual convenience of their own offices and facilities. They will, on any view, be inconvenienced by the lack of ready access to standard office equipment that would otherwise be available to them in Australia. Of course, that is not a difficulty peculiar to this case and, indeed, it is one that may be thought to be rendered nugatory by the provision of appropriate financing; however, as common experience reveals, the benefit of litigating in an environment where familiar and accessible resources are readily available is one that should not be underestimated.

52    Second, the time difference between the UK and Australia would, as submitted by Dr Jaques, make the obtaining of instructions difficult for the counsel and solicitors of the Commissioner. Whilst it might be expected that, in the ordinary course, the availability of legal instructors will be immaterial to the carriage of a cross-examination, this case is one of especial complexity and it is likely there will be officers of the Australian Taxation Office (ATO) whose knowledge of Mr Gumm’s affairs (and the relevant investigation(s) into them) will be important for any cross-examination. In turn, if the Application were to be granted, it would require ATO officers in Australia to make themselves available outside of normal office hours. While the occurrence of international communications during the Australian nighttime is now a matter of quotidian practice in private enterprise, it is unlikely that it is something that could be achieved within the confines of the work practices of the Australian public service save, possibly, without substantial additional cost and difficulty: see, eg, s 333M of the Fair Work Act 2009 (Cth).

53    Against this, it can be accepted that Mr Gumm has evinced a willingness to meet the additional costs of the Commissioner arising from the grant of the Application. For instance, one iteration of his proposed draft orders is in the following form:

4.    The orders in Paragraph [1] and [2] are conditional on the payment by the Applicant of the Respondent’s costs in relation to the examination, in an amount to be agreed between the parties or determined by the Court in advance of the trial.

5.    The Applicant is to pay the costs referred to in Paragraph [4] within three weeks of the establishment of a date for the trial in this proceeding, and on the basis that the Respondent is entitled to a complete indemnity against the costs of the examination, including unforeseen cost overruns.

6.    The costs and expenses mentioned in Paragraph [5] will be borne by the Applicant and are not costs in the cause.

54    Whilst it might be readily accepted that this would include the cost of the Commissioner’s legal team travelling to London for the purpose of the hearing (and their associated accommodation), it is not entirely clear how far that indemnity extends. For example, it is not clear that it would include the additional costs incurred in requiring ATO officers to work overtime in Australia whilst the proceedings were being conducted in the UK. In this respect, the proposed indemnity orders lack certainty. It is noted that it also requires an agreement as between Mr Gumm and the ATO in relation to the costs to be paid. That could, and is likely to, give rise to substantial disputation about what is to be included in the indemnity and, as such, is an inappropriate form of order. Whilst it may be possible to be more specific as to the scope of the offered indemnity, that is not something that the Court should attempt to, or be expected to, do alone.

55    If the Application is granted, the Commissioner will be required to devote greater resources, management and expense than would otherwise be expected. Such expenses may foreseeably include those associated with the hiring of rental space in London, in printing and photocopying (and similar ancillary necessities), as well as the payment of officers of the ATO for work done outside of working hours. It is also likely that additional, as of yet unforeseen, costs will arise. Although Mr Gumm offers to assume the financial burden of certain inconveniences that may befall the Commissioner were the Application to be granted, that indemnity leaves substantive matters to be agreed and, accordingly, does not resolve the issues that are likely to be faced by the Commissioner. Such inconveniences are, by no means, dispositive of the Application; however, when due regard is paid to the “justice” inter partes (or the “interests of justice” more generally), they can only be understood as tending in favour of its dismissal.

4.    Refusal of the Application will not prevent Mr Gumm from pursuing his appeal

56    The Gumm Affidavit makes clear that, if the Application is refused, Mr Gumm intends to continue the proceeding based on “documentary evidence and testimony from other witnesses”. Indeed, in an affidavit filed 11 February 2025, the solicitor for the applicant identifies that, though “it would take many weeks of work”, other witnesses could be called to give evidence on the same matters on which evidence would otherwise be given by Mr Gumm. Assuming that to be the case, there is less impetus for the making of the orders now sought. Mr Gumm’s ability to prosecute the appeal without his testimony is such that the interests of justice are not potentially diminished to the extent they might otherwise be if the orders sought are not made.

5.    The taking of evidence on commission will not be open to the public

57    It is far from irrelevant that the taking of evidence on commission is a private affair. It is not until the evidence is tendered in court proceedings that it becomes evidence before the Court. Additionally, though the evidence may be taken before a person who is a judge, they do not sit as a judicial officer: Pharm-a-care Laboratories Pty Ltd v Commonwealth of Australia (No 2) [2010] FCA 187 [12] (concerning the predecessor to r 29.16 of the Federal Court Rules 2011 (Cth), being Order 24 rule 5). In this context, Gilmour J observed in Oswal (No 5) (at [63]):

As s 9 makes clear, the taking of evidence on commission does not form part of the trial of the proceedings in which the order for issue of the commission is made. The examination is a “private proceeding” which is not accessible to the public: Indochina Medical Co Pty Ltd v Nicolai [2013] NSWCA 436 at [46]-[49]; Magnusson v ACT Health and Community Care Service [2001] ACTSC 3 at [9]. As a result, one of the “fundamental features of court proceedings is absent”: Indochina at [46].

58    In the context of the Application, it is necessary to keep in mind that the hearing of evidence in open court is a fundamental cornerstone of the Court’s process and something that should be protected as far as possible: see, eg, Russell v Russell (1976) 134 CLR 495, 520.

59    Mr Gumm sought to overcome the impact of this issue by offering not to oppose any application for hearing of his evidence being made open to the public. However, it is far from clear that there is any power for the Court to make such an order. Furthermore, it is not immediately clear how that might practically occur. It would necessitate the obtaining of premises from which to conduct the hearing which included appropriate security measures for the Court’s personnel, and it not clear where such premises might be located.

60    There is little to be gained from going through the motions of allowing the proceedings to be open to the public in a place where the relevant public is not located. For the purposes of proceedings before this Court, it is the Australian public who are entitled to attend and view the process which they support through their taxes. It is they who have the relevant interest in the maintenance of the highest standards of the administration of justice, which is partly, if not now mostly, preserved by the Court’s being open to public scrutiny and criticism. The benefits of such is diminished almost to nil by having hearings in the UK.

61    In this context, it is relevant that the cross-examination of Mr Gumm is likely to compromise a substantial part of the hearing. Although there may be other witnesses, it is his evidence that will assume centrality to the outcome. In the circumstances, were the Application to be granted, it would have the effect of the essential part of the proceedings taking place where scrutiny by the Australian public is not readily available. That should be avoided.

Conclusion as to “justice” inter partes (and the “interests of justice” generally)

62    In light of the foregoing, the following can be said. If the Application is granted, Mr Gumm will be able to give evidence in the appeal without fear of indefinite detention in Australia; that is, plainly, in his interests. However, to do so would put the respondent at an inconvenience that is not overcome by any indemnity offered by Mr Gumm; that is, undoubtedly, not in the respondent’s interests. It would also (a) undermine the public interest in the due administration of the Taxation Administration Act; and (b) involve the taking of evidence in a forum that is not readily accessible to the Australian public. Conversely, if the Application is denied, Mr Gumm will not participate in the appeal. Though that is contrary to his interests, it is not fatal to the carriage of the proceeding; indeed, as he and his solicitor depose, it is anticipated that other witnesses can (and will) be called to give evidence upon those matters he would have.

63    Having regard to the interests of the parties to the proceeding, it appears that “justice” will be best served by refusing the Application. That conclusion may be thought to be finely balanced. However, when regard is paid to the public interest in preserving the integrity of laws passed by our elected representatives, as well as the interest of the Australian public in transparency in judicial proceedings, the “interests of justice” cannot be said to support the Application.

64    In the result, whilst I am satisfied that Mr Gumm is a person who is (a) unwilling to come to Australia to give evidence in the proceeding; and (b) able to give evidence material to any issue to be tried in the proceeding, I am not satisfied that grant of the Application would promote “justice” inter partes (s 7(2)(c) of the Act) or the interests of justice at large (s 7(1) of the Act).

Consideration (4): The residual discretion

65    The conclusions above favour, but do not compel, dismissal of the Application. That is at least what is conveyed by the chapeau of s 7(1). Having reached a state of satisfaction that the taking of Mr Gumm’s evidence on commission is not in the interests of justice, I cannot conjure any reason that would justify the exercise of the Court’s residual discretion to grant the Application.

Conclusion

66    In the result, the Application should be dismissed with costs.

Associate:    

Dated:    11 August 2025