Federal Court of Australia

Gumm v Commissioner of Taxation [2025] FCA 1603

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for leave to appeal dated 25 August 2025 is dismissed.

2.    The applicant pay the respondent’s costs of the application, to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

NESKOVCIN J:

1    By application dated 25 August 2025 (leave application), the applicant seeks leave to appeal from the primary judgment in Gumm v Commissioner of Taxation (No 3) [2025] FCA 927 (PJ) in which the primary judge dismissed the applicant’s application filed on 9 July 2024, and amended on 27 March 2025, seeking orders pursuant to ss 7(1)(a) and/or (b) of the Foreign Evidence Act 1994 (Cth) that he be entitled to give evidence on commission in the United Kingdom (application under the Foreign Evidence Act).

2    The primary judge was satisfied that the requirements under ss 7(2)(a) and (b) of the Foreign Evidence Act were satisfied. However, the primary judge was not satisfied that the grant of the application would promote “justice” inter partes (s 7(2)(c) of the Foreign Evidence Act) or the interests of justice at large (s 7(1) of the Foreign Evidence Act). Having found that those conclusions favoured, but did not compel, dismissal of the application, the primary judge considered the exercise of the Court’s residual discretion and determined that the application should be dismissed.

3    For the purpose of the leave application, the applicant submitted that the primary judgment is attended by sufficient doubt primarily because the primary judge declined to exercise the discretion under s 7(1) of the Foreign Evidence Act in accordance with the principles established in the High Court and other authorities and, furthermore, misdirected the Court’s inquiry or focus in applying s 7(1) of the Foreign Evidence Act. The applicant further submitted that substantial injustice would be caused if the primary judgment was allowed to stand because the applicant could not give evidence in Australia without subjecting himself to the risk of detainment or incurring substantial costs.

4    For the reasons that follow, I am not persuaded that the prospective appeal has merit and leave to appeal should be refused. Even assuming the primary judgment to be wrong, I am not persuaded that the applicant would suffer substantial injustice if leave to appeal is refused.

the application under the foreign evidence act

5    In the application under the Foreign Evidence Act, the applicant sought orders pursuant to ss 7(1)(a) and/or (b) of the Foreign Evidence Act that he be entitled to give evidence on commission in the United Kingdom.

6    Relevantly for the purpose of that application, the parties agreed the following facts, as set out at PJ [3]:

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...

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.

…

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.

…

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 legislative framework

7    Section 7 of the Foreign Evidence Act 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 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.

8    It was not in issue that this Court is a “superior court” for the purposes of s 7: s 3(1) of the Foreign Evidence Act, PJ [5].

the decision of the primary judge

9    After setting out some of the relevant background and the relevant statutory provision, the primary judge identified the core issue for determination to be “whether it is in the interests of justice” for the Court to make an order that the applicant be able to give evidence on commission: PJ [18]. His Honour identified that as the core issue for determination, having satisfied himself that the threshold conditions under s 7(1) of the Foreign Evidence Act were satisfied: PJ [16]–[17].

10    The primary judge observed, at PJ [18], that satisfaction as to “whether it is in the interests of justice” for the Court to make an order is the condition on which the discretion in the chapeau to s 7(1) is enlivened. Furthermore, in ascertaining whether that circumstance exists, the Court is to address the considerations in ss 7(2)(a)–(c).

11    The primary judge was satisfied that the considerations in ss 7(2)(a) and (b) were satisfied: PJ [19]–[23]. Turning to s 7(2)(c), his Honour observed that the consideration of whether, having regard to the interests of the parties to the proceeding, justice will be served by granting or refusing the order, was a broad evaluative one: PJ [27]. His Honour identified a number of factors that bore upon “justice” inter partes or “the interests of justice” generally, and considered each in turn. His Honour reached the following 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).

12    Having found that the above conclusions favoured, but did not compel, the dismissal of the application, the primary judge considered the residual discretion at PJ [65]. His Honour concluded that, having reached a state of satisfaction that the taking of the applicant’s evidence on commission was not in the interests of justice, he could not conjure any reason that would justify the exercise of the Court’s residual discretion to grant the application, and so he dismissed it.

LEGAL PRINCIPLES – LEAVE to appeal

13    Leave to appeal from the primary judgment is required pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

14    The applicable principles are well established and were not in dispute. Relevantly, the applicant for leave to appeal must show that the judgment to be appealed is attended with sufficient doubt to warrant it being reconsidered, and that substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 (Sheppard, Burchett and Heerey JJ). The sufficiency of the doubt in respect of the decision and the question of substantial injustice bear upon each other so that the degree of doubt which is sufficient in one case may be different from that required in another. Further, the considerations are cumulative and both limbs must be made out: Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (2017) 252 FCR 1; [2017] FCAFC 98 at [38] (Jagot, Yates and Murphy JJ).

15    In assessing whether the judgment to be appealed is attended by doubt sufficient to warrant its reconsideration on appeal, the Court’s task is to evaluate at “a reasonably impressionistic level” whether the bases upon which the applicant hopes to impugn it are “sufficiently arguable” or attract “reasonable prospects of success”: Olson v Keefe [2019] FCA 339 at [9] (Lee J).

16    Generally speaking, the Court should be concerned to keep a “tight rein” upon the interference with orders involving the exercise of discretion on points of practice and procedure: Nationwide News Pty Limited v Rush [2018] FCAFC 70 at [4] (Lee J, with whom Allsop CJ and Rares J agreed). The parties agreed that this principle applied to the present application for leave to appeal the primary judge’s decision to refuse to allow evidence on commission under the Foreign Evidence Act.

17    Finally, as the decision to be appealed involved the exercise of a discretion, the applicant must demonstrate an error in the exercise of the discretion of the kind described in House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ). In that case, the plurality explained that it is not enough that the appellate court be persuaded that it would or might have made a different decision than the primary judge, the applicant must show that the primary judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect them, mistook the facts, or did not take into account some material consideration.

the APPLICATION for leave to appeal

18    The leave application raised seven proposed grounds of appeal by way of an amended draft notice of appeal. In summary terms, the leave application alleged the following grounds of appeal:

(a)    the primary judge erred by declining to exercise the discretion in accordance with the principles established by Hardie Rubber Co Pty Ltd v General Tire (1973) 129 CLR 521 at 528, and other authorities;

(b)    the primary judge erred by failing to apply s 7 of the Foreign Evidence Act in a way that best promotes the overarching purpose in s 37M of the FCA Act;

(c)    the primary judge erred by treating the reason for the applicant’s unwillingness to give evidence in Australia as weighing against granting leave for the applicant to give evidence on commission and failed to apply the law in Australia, which the applicant submitted is represented by the decision in Polanski v Conde Nast Publications Limited [2005] 1 WLR 637; [2005] UKHL 10 and the decision of Pagone J in Seymour v Commissioner of Taxation (2016) 241 FCR 361; [2016] FCAFC 18 at [106];

(d)    the primary judge erred by treating it as material that the applicant was the moving party or plaintiff in the proceeding;

(e)    the primary judge erroneously treated the application for evidence on commission as an attempt by the applicant to shirk his legal obligations and foil the operation of law;

(f)    the primary judge erred by treating the respondent differently to a private sector litigant in the same circumstances; and

(g)    the primary judge erred in respect of the matters at PJ [57]–[61] which concerned “open justice”.

consideration of the APPLICATION FOR LEAVE

19    The first limb, whether the applicant has demonstrated that the primary judgement is attended with sufficient doubt to warrant it being reconsidered, will be considered by reference to the seven proposed grounds of appeal in the draft amended notice of appeal.

Ground one: alleged failure to exercise the discretion in accordance with the principles in Hardie Rubber

20    The applicant contended that the primary judge erred in law, at PJ [23]–[25], by declining to exercise the discretion under s 7(1) of the Foreign Evidence Act in accordance with the principles in Hardie Rubber and other authorities. The applicant submitted that his Honour should have proceeded on the basis that the discretion under s 7 of the Foreign Evidence Act should be exercised in accordance with the “general rule” laid down in Hardie Rubber and other authorities.

21    The legislative history of s 7 of the Foreign Evidence Act has been outlined elsewhere (see Rawson Finances Pty Ltd v Commissioner of Taxation (2016) 103 ATR 630; [2016] FCAFC 95 at [47]–[48] (Robertson, Moshinsky and Bromwich JJ)) and was conveniently summarised in the primary judgment at PJ [9].

22    The applicant’s reference to the “general rule” in Hardie Rubber was a reference to the following quote, which the applicant relied upon, from the decision of Gibbs J (at first instance in a decision that was upheld on appeal by the Full Court) at 528:

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].

23    Immediately following the passage in Gibbs J’s decision in Hardie Rubber set out in paragraph 22 above, Gibbs J said:

However, the members of the Court in Willis v Trequair (1906) 3 CLR 912 recognized that there may be exceptions to this general rule and repeatedly referred to the power as a discretionary one, although they did not find it necessary to attempt to state exhaustively the circumstances in which an order may be refused in the exercise of the discretion of the Court.

24    Thus, Gibbs J recognised the discretionary nature of the Court’s power to order evidence on commission.

25    The applicant’s submission that the primary judge was required to exercise the discretion in s 7 in accordance with the “general rule” laid down in Hardie Rubber and the authorities that preceded s 7 is rejected. His Honour correctly, with respect, recognised that the predecessor to s 7 was “predicated upon the common law existing circa 1985” (PJ [9]) and that the provision was not a codification of the common law (PJ [10]). As his Honour succinctly put it, at PJ [9], “the drafting of …s 7(2) of the [Foreign Evidence Act] bears homogeny with the criterion identified in Hardie Rubber … as relevant to the exercise of the Court’s discretion to make an order of the nature [sought by the applicant]”.

26    The primary judge correctly identified that the Court was required to determine whether to exercise its discretion under s 7(1) of the Foreign Evidence Act and that, pursuant to the terms of that provision, “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)” and that “[t]o do so, it must consider the 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”: at PJ [11].

27    In my assessment, the primary judge correctly undertook the statutory task before him with proper regard to the relevant case law, including Hardie Rubber, before deciding whether or not to exercise the Court’s discretion to make the order sought by the applicant.

Ground two: the primary judge erred by failing to apply s 7 of the Foreign Evidence Act in a way that best promotes the overarching purpose in s 37M of the FCA Act

28    The applicant contended that the primary judge’s inquiry was misdirected in that the primary judge was required to apply s 7 of the Foreign Evidence Act in a way that best promoted the overarching purpose in s 37M of the FCA Act. The applicant submitted that the primary judge erred by deciding the application substantially by reference to the public interest in the administration of the Taxation Administration Act 1953 (Cth) and the applicant’s motives for wishing to give evidence outside of Australia.

29    The applicant’s counsel acknowledged that the applicant’s written submissions before the primary judge did not direct his Honour to s 37M of the FCA Act or how s 7 of the Foreign Evidence Act should have been applied in light of s 37M, and that his Honour was only directed to s 37M briefly in oral submissions.

30    Although the primary judgement did not make reference to s 37M of the FCA Act, the primary judge had regard to a variety of factors that are often regarded as relevant to the overarching purpose, including “the efficient and dignified operation of the Australian legal system” (PJ [46]); the location of the parties’ legal teams (PJ [3(11)] and [3(12)]); that at the time of the application the applicant’s evidence had been finalised (PJ [3(8)]); the applicant was the principal witness and would be able to give evidence material to issues to be tried (PJ [22]–[23]); the costs and inconvenience to the respondent if the application were granted (PJ [50]–[55]); the detriment to the applicant if it was necessary to call other witnesses and the additional work that would involve (PJ [56]). Based on those matters, it is a reasonable inference, and I infer, that the primary judge was also aware of and considered the additional cost the applicant would incur if the application was not granted and it was necessary to call other witnesses, which he said he intended to do: PJ [56].

31    Even if the applicant was able to demonstrate error on the part of the primary judge in failing to specifically consider the overarching purpose in s 37M, I am not satisfied that the error was material or would have led to a different result having regard to the analysis of the competing considerations undertaken by the primary judge: Tamaya Resources Ltd (In Liq) v Deloitte Touche Tohmatsu (A Firm) (2016) 332 ALR 199; [2016] FCAFC 2 at [88], [205] (Gilmour, Perram and Beach JJ).

Ground three: treatment of the reasons for the applicant’s unwillingness to give evidence in Australia

32    The applicant contended that the primary judge erred by treating the reason for the applicant’s unwillingness to give evidence in Australia as weighing against evidence on commission and failed to apply the law in Australia, which the applicant submitted is represented by the decision in Polanski and the decision of Pagone J in Seymour at [106].

33    This proposed ground of appeal has no ostensible merit. The primary judge correctly recognised, at PJ [49], that no Australian authority has approved the reasoning in Polanski. Furthermore, the decision of Siopis J in Seymour (at [22]–[30]) and Griffiths J (at [67]–[74]) are contrary to or otherwise inconsistent with Polanski. Pagone J (who was in dissent), at [106]–[107], effectively approved the decision of Lord Nicholls in Polanski.

34    The issues in Seymour were conveniently set out by the primary judge at PJ [40]–[45]. As his Honour noted, at PJ [40], the Full Court in Seymour was concerned with whether the primary judge in that case had erred in setting aside a decision of the Administrative Appeals Tribunal to allow certain taxpayers to give evidence by video link from Mauritius. The Full Court 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 Tribunal’s discretion under s 35A of the Administrative Appeals Tribunal Act 1975 (Cth): at [15] (Siopis J), [41]–[42] (Griffiths J), [106] (Pagone J); and, second, the majority held that 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. Griffiths J held that such a desire was, in itself (and at best), not material to the decision of whether to permit evidence by video link (at [58]–[64]). Siopis J similarly held that the desire of an overseas litigant to avoid the reach of the Australian authorities was not a relevant focus for the Tribunal’s inquiry (at [23]–[30]). Pagone J disagreed, at [106], stating:

Wishing to avoid the possibility of legitimate action by taxation, regulatory or prosecuting authorities in Australia is a relevant consideration for the Tribunal albeit that it may not always result in a favourable outcome for those wishing to avoid the possibility of legitimate action.

35    As the above quoted passage suggests, even if Pagone J’s decision in Seymour applied, taking into account the desire of the overseas litigant to remain out of reach of Australian authorities might not result in a favourable outcome for the litigant.

36    The primary judge considered the reasons given for the applicant’s unwillingness to return to Australia to give evidence at PJ [21], [27], [31]–[37]. His Honour did so as part of the consideration of the “justice” inter partes and the “interests of justice” generally: PJ [30]. Section 7(2) of the Foreign Evidence Act confers a broad discretionary power to evaluate the “interests of justice”. The applicant has not demonstrated that there is sufficient doubt regarding the primary judge’s consideration of the interests of justice and the primary judge’s assessment of the applicant’s reasons for not wishing to travel to Australia to give evidence as a matter that was relevant to the interests of justice.

Ground four: treatment of the applicant as the moving party

37    The applicant contended that the primary judge erred by treating as material that the applicant was the moving party or plaintiff in the proceeding. The applicant submitted that much of the primary judge’s reasoning proceeded from the view that the applicant had chosen to invoke the jurisdiction of the Court and therefore had to abide by the consequences of that choice, by attending Court in person and “running whatever risks this entails”. The applicant submitted that the reasoning was based on a misconception of fact or an omission to apply the correct principle to the status of a person as a moving party or defendant.

38    As the applicant submitted, whether or not a litigant is the moving party is a question of substance: Madgwick v Kelly (2013) 212 FCR 1; [2013] FCAFC 61 at [16] (Allsop CJ and Middleton J). The applicant asserted that a “taxpayer challenging audit findings and assessments is in the position of a defendant”. The applicant relied on authorities where the Court, dealing with a security for costs application, described a Pt IVC tax appeal as having a “defensive element”, which was merely regarded as a factor that weighed against an order for security for costs from the applicant: see Oswal v Commissioner of Taxation (No 2) (2015) 102 ATR 220; [2015] FCA 1143 at [53]–[54] (Nicholas J).

39    The authorities relied upon by the applicant are distinguishable and of limited assistance on this point. Even if the primary judge did not explicitly consider whether the applicant was the moving party or was the defendant, his Honour considered the applicant’s position and role as a litigant before the Court. I do not discern any error in his Honour’s analysis or approach, or that any alleged error was material to the result.

Ground five: the primary judge treated the application for evidence on commission as an attempt by the applicant to shirk his legal obligations and foil the operation of law

40    The applicant contended that the primary judge, at PJ [45]–[46], erroneously treated the application for evidence on commission as an attempt by the applicant to shirk his legal obligations and foil the operation of law.

41    The applicant’s submissions in support of ground five are misconceived. Contrary to the applicant’s submissions, the primary judge did not say that “the [a]pplicant must observe the obligations ‘that fall on the shoulders of each and every citizen in our democracy (such as those prescribed by the Taxation Administration Act 1953)’” at PJ [45]. Nor did the primary judge “characterise” the applicant’s request for evidence on commission as a request for the Court to take action to sanction an attempt by the applicant to “circumvent” or “foil” the operation of law at PJ [46]. The impugned reasons need to be read in proper context.

42    The primary judge had found, at PJ [35], that the applicant was unwilling to return to Australia because he feared that he would be lawfully detained by either the respondent or some other law enforcement agency. The primary judge, from PJ [38], commenced to deal with the applicant’s submission that courts have treated as sufficient to warrant a commission on examination an unwillingness to return to Australia due to a fear of action by Australian law enforcement agencies. His Honour considered various authorities relied upon by the applicant, stating that he did not accept that the authorities stood for any such proposition: PJ [39]–[40]. His Honour then considered the Full Court’s decision in Seymour, which made reference to the decision of the House of Lords in Polanski.

43    Contrary to the applicant’s submissions, the primary judge’s remarks at PJ [45] were not directed to the applicant and were general in nature having regard to the findings of Griffiths J in Seymour. In that context, his Honour said, at PJ [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.

44    Having observed that the applicant’s right of appeal should be fiercely guarded, his Honour stated that that was not to say the Court should extend indulgences that, in effect, allowed the applicant to circumvent the operation and consequence of enacted laws and nor should the Court sanction attempts by parties to foil the operation of the law. His Honour then went on to consider the reasons for the applicant’s unwillingness to return to Australia to give evidence, being his fears of being “lawfully detained”, regarding that as relevant to the “interests of justice” under s 7(2): see also PJ [30]. The validity of the primary judge’s approach to the consideration of the “interests of justice” and regard to the applicant’s reasons for not wishing to travel to Australia to give evidence has already been discussed.

Ground six: the primary judge treated the respondent differently to a private sector litigant in the same circumstances

45    The applicant contended that the primary judge erred, at PJ [51]–[52], by treating the respondent differently to a private sector litigant in the same circumstances.

46    The reasons that the applicant seeks to impugn must be understood in their proper context. His Honour, at PJ [50]–[55], was considering the inconvenience to the respondent if the application was granted. That inconvenience included the costs that would be incurred in undertaking complex cross-examination in a foreign country, including having regard to the availability to obtain instructions from officers of the Australian Taxation Office who remained at home, in a different time zone. I reject the applicant’s submission that the primary judge gave the respondent special consideration as a Commonwealth entity. The applicant’s focus was on the reference at the end of PJ [52] to the difficulties of receiving instructions from Australia outside of normal hours with reference to s 333M of the Fair Work Act 2009 (Cth). However, there is nothing in the reasoning to suggest that his Honour understood that provision to apply exclusively to Commonwealth employees.

Ground seven: the primary judge erred in respect of matters concerning “open justice”

47    The appellant contended that the primary judge erred, at PJ [57]–[61], by placing significant weight on the fact that a commission for examination is a private proceeding and is not open to the public. The appellant submitted that the primary judge made two errors of principle: first, because an examination can be opened to the public under s 8 of the Foreign Evidence Act and second, by attributing significant weight to court proceedings being open to the public.

48    The primary judge observed, at PJ [57], that the taking of evidence on commission is a private affair and it is not until the evidence is tendered in court proceedings that it becomes evidence before the Court. Additionally, although the evidence may be taken before a person who is a judge, they do not sit as a judicial officer, citing Pharm-a-care Laboratories Pty Ltd v Commonwealth of Australia (No 2) [2010] FCA 187 at [12] (Flick J) and Commissioner of Taxation v Oswal (No 5) [2015] FCA 1504 at [63] (Gilmour J, in turn citing 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]). Consequently, one of the “fundamental features of court proceedings is absent”: Indochina at [46] (Barrett JA).

49    The primary judge also observed, at PJ [58], 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, referring to Russell v Russell (1976) 134 CLR 495 at 520 where Gibbs J observed that “[t]he fact that courts of law are held openly and not in secret is an essential aspect of their character”.

50    The applicant did not take issue with those observations which, with respect, were correct.

51    A fair reading of the primary judge’s reasoning shows that his Honour was concerned to maintain the expectation that proceedings before this Court would be open to the public. The primary judge noted the applicant’s submission that the examination could be made open to the public, but stated that it was far from clear that the Court had power to make such an order or how that might practically occur. In light of the uncertainties of that submission and having observed that the practical effect of granting the application would be that the essential part of the proceeding (being the applicant’s cross-examination) would take place where scrutiny by the Australian public was not readily available, his Honour stated that an examination without public scrutiny should be avoided. His Honour weighed the competing considerations and determined the application having done so.

Conclusion on sufficient doubt

52    For the reasons set out above, I am not persuaded that the judgment of the primary judge is attended with sufficient doubt to warrant it being reconsidered or that any alleged error, were it established, was material to the result.

Substantial injustice

53    Having determined that the applicant failed to establish the first limb in relation to sufficient doubt, it is strictly not necessary to consider the second limb. Nevertheless, in deference to the submissions that were made and for the reasons that follow, I am not persuaded that substantial injustice would result if leave to appeal were refused, supposing the decision to be wrong.

54    First and foremost, the primary judge found, at PJ [56] and [62], that if the application under the Foreign Evidence Act was refused, the applicant intended to continue the proceeding based on documentary evidence and testimony from other witnesses, and other witnesses could be called to give evidence on the same matters on which evidence would otherwise be given by the applicant, though it would take many weeks of work. Furthermore, at PJ [50], the primary judge found that the case was likely to be “document heavy”. The applicant did not challenge those (or any other) factual findings by his Honour. As a result, the applicant will not be prevented from prosecuting his case if the decision of the primary judge still stands.

55    The primary judge also found, at PJ [35], that the applicant is unwilling to come to Australia for the hearing because he fears that he would be lawfully detained by either the Commissioner of Taxation or some other law enforcement authority. The applicant did not challenge that finding and, in written submissions, the applicant explained that his fear was due to the tax liabilities and allegations of tax evasion that are at issue in the proceeding. The primary judge further found, at PJ [33]–[36], that:

(a)    there was no evidence before the Court to indicate that any Government agency or department other than the respondent would have reason to seek to detain the applicant;

(b)    the applicant was prepared to pay the primary taxation liability of $7,661,492.86 as security if the Court made an order for him to give evidence on commission in the UK;

(c)    if the applicant paid the primary taxation liability as security and returned to Australia to give evidence, the Commissioner was willing to undertake not to issue a departure prohibition order (DPO).

56    The applicant did not challenge any of those findings. The respondent submitted that the applicant’s concern that the Commissioner might issue him with a DPO if he were to return to Australia could be overcome by the applicant agreeing to pay the primary taxation liability as security in exchange for the Commissioner’s agreement not to issue a DPO. In oral submissions, the applicant’s counsel effectively conceded that it was open to the applicant to travel to Australia to give evidence, albeit that it would require the applicant to provide security for the primary taxation liability to secure the Commissioner’s undertaking not to issue a DPO. In light of those matters, it seems reasonably open to the applicant to return to Australia to give evidence even if the primary judgement still stands.

conclusion

57    For those reasons, the application for leave to appeal should be refused.

Associate:

Dated:    17 December 2025