Federal Court of Australia

Vines (Trustee), in the matter of the Bankrupt Estate of Mitchell v The Edge TC Pty Ltd (No 6) [2026] FCA 63

ORDERS

THE COURT NOTES THAT:

A.    The following orders relate to:

(a)    the applicants' amended interim application filed on 31 July 2025 (Applicants' IA); and

(b)    the interlocutory application filed on 15 September 2025 (Interested Parties' IA) on behalf of Ms Andrea Miller (fourteenth respondent), Mr Robin Mitchell (seventeenth respondent); and Mrs Wendy Mitchell (twentieth respondent) (the Interested Parties),

listed for hearing on 10, 11 and 12 February 2026.

B.    The Interested Parties have sought to be heard in relation to the Applicants' IA.

THE COURT ORDERS THAT:

1.    Pursuant to s 47A(1) of the Federal Court of Australia Act 1976 (Cth) each of the twentieth respondent and Sam Alexander Mitchell (Witnesses) may give evidence by audio visual link at the hearing listed on 10, 11 and 12 February 2026 on condition that, save with the leave of the Court, each of the Witnesses:

(c)    will give that evidence in a quiet, enclosed room, in which the Witness will be the only person in the room throughout the duration of the evidence;

(d)    will use a stable high speed internet connection to connect to the Court's conferencing system;

(e)    will employ a camera which shows the Witness's face directly on;

(f)    will have access electronically and in hard copy to all necessary documents; and

(g)    will not have active, or use, any means available to the Witness of communicating with any person, for example, in person, by phone or by computer.

2.    The applicants and the Interested Respondents must, on or before Wednesday 4 February 2026, confer by their solicitors as to any further conditions, or amendments to the conditions in paragraph 1, as are necessary or convenient to facilitate the proper giving of evidence by each of the Witnesses.

3.    There is liberty to the applicants and the Interested Respondents to apply on short notice by email to vary or supplement the conditions in paragraph 1.

4.    No order as to costs.

5.    By 12.00 pm AWST on 30 January 2026, the Interested Respondents must serve any minute of amended interlocutory application on the applicants in relation to the Interested Parties' IA.

6.    The time for compliance with paragraph 5 of the orders made on 9 December 2025 (by which the applicants must file and serve any responsive evidence in opposition to the Interested Parties' IA and in support of the Applicants' IA) is extended to 4.00 pm AWST on 2 February 2026.

7.    The time for compliance with paragraph 7 of the orders made on 1 October 2025 (by which the applicants must file and serve an outline of submissions in opposition to the Interested Parties' IA) is extended to 4.00 pm AWST on 2 February 2026.

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

REASONS FOR JUDGMENT

JACKSON J:

1    On 28 January 2026 I made orders giving leave for the oral evidence of two witnesses to be received by audio visual link. These are my reasons for those orders.

2    The applicants in this proceeding are the trustees in bankruptcy of Sam Mitchell, whose bankruptcy is undischarged. The substantive dispute that is presently relevant follows from the applicants' application for a number of companies said to be associated with Mr Mitchell to be wound up.

3    That application is listed to be heard on 10, 11 and 12 February 2026. Opposing it will be parties who are known as the Interested Respondents (see Vines (Trustee), in the matter of the Bankrupt Estate of Mitchell v The Edge TC Pty Ltd (No 5) [2026] FCA 4 (Mitchell (No 5)), Listed for hearing at the same time as the winding up application is an application by the Interested Respondents for orders concerning the directorship of some of the relevant companies and the trusteeship of certain relevant trusts.

4    On 22 January 2026 the Interested Respondents applied for orders pursuant to s 47A(1) of the Federal Court of Australia Act 1976 (Cth) and r 5.04(1) of the Federal Court Rules 2011 (Cth) (item 27 of that rule) for the evidence of the two witnesses to be given by audio visual link. The witnesses covered by the AVL application were, first, Mr Mitchell, and second, his mother (and one of the Interested Respondents) Wendy Mitchell. In Mr Mitchell's case, the AVL application was made because he is in the United States of America, and unwilling to return to Australia. In Mrs Mitchell's case, it was for medical reasons.

5    By the time of the hearing, on 27 January 2026, there was no controversy about the orders concerning Mrs Mitchell. So other than to say that there was evidence satisfying me that her medical condition is such as to make it appropriate to relieve her from the need to fly to Perth from her home in Sydney, there is no need to address her situation in the reasons. The controversy was over the orders in respect of Mr Mitchell.

Reasons advanced as to why Mr Mitchell should give evidence from the United States

6    It can comfortably be inferred from the evidence the Court has received so far in this proceeding that Mr Mitchell was involved with the affairs of several, perhaps all, of the companies that are the subject of the winding up application. That is abundantly clear from the evidence that Feutrill J recounted in the first decision issued in this proceeding: Vines, in the matter of the Bankrupt Estate of Mitchell [2024] FCA 1276 (Mitchell (No 1)). In respect of two of the respondent companies, it also appears from my reasons in Mitchell (No 5).

7    While the applicants made an attempt in oral submissions to argue that Mr Mitchell's evidence was unlikely to be relevant, that sat ill with their strongly expressed opposition to the AVL application, which involved submissions that the credibility of Mr Mitchell's evidence will be subject to significant challenge in cross-examination. It was also inconsistent with the substance of at least some of the five affidavits of Mr Mitchell on which the Interested Respondents intend to rely. It is not necessary to describe those affidavits here. While their relevance will be a matter for trial, I accepted that it is likely that Mr Mitchell will give evidence about matters of potential significance for the winding up applications. I also accepted that the evidence is likely to be the subject of cross-examination in which his credibility will be questioned.

8    However, in an affidavit affirmed before a notary public in La Jolla, California on 23 January 2026, Mr Mitchell gave evidence that he was not willing to travel to Australia to give that evidence. The reasons he gave were as follows:

(1)    He fears that on his arrival in Australia, he may be arrested, charged and detained for offences under the Bankruptcy Act 1966 (Cth), specifically s 265 (concerning failures to disclose property and to give other information) and s 272 (concerning leaving Australia with intent to defeat creditors).

(2)    He may be subject to a departure prohibition order under s 14S of the Taxation Administration Act 1953 (Cth). That is in circumstances where the Australian Taxation Office has issued Director Penalty Notices against him claiming that he is liable for a total of around $3.6 million in superannuation guarantee charges and taxes outstanding from various companies of which he was a director.

(3)    His Australian passport will be taken from him as he is required to give it to the applicants under s 77(1)(a)(ii) of the Bankruptcy Act. In that respect, however, an affidavit sworn on 23 January 2025 by a solicitor for the applicants, Simon Tribble, indicated that the applicants agreed to excuse Mr Mitchell from the requirement to surrender his passport.

9    Mr Mitchell said that these fears have been heightened as a result of complaints he made to the Australian Securities and Investments Commission and the Australian Financial Services Authority (AFSA) about the conduct of one of the applicants and one of the interim receivers from the same firm, Hall Chadwick, who was appointed in the orders made in Mitchell (No 1). He has also complained to AFSA about the conduct of Hall Chadwick more generally. He made these complaints in late December 2025.

10    Mr Mitchell deposed to what he said would be the adverse effect on his family if he were unable to return to the United States. He lives in La Jolla with his wife, the fourteenth respondent (and Interested Respondent) Andrea Miller and their 3-year-old son. According to Mr Mitchell, Ms Miller works full time and he cares for their son while she works. He further deposed that his son recently required surgery to his tongue as a result of an accident and was convalescing at the time of the affidavit. He said 'I have played a major role in his recovery which is likely to continue for a few months'. As the applicants point out, no further detail about the son's medical condition is provided.

11    Mr Mitchell's affidavit also included evidence of adversarial correspondence between him and the applicants on 13 January 2026, but it added little to the matters set out above and I placed no weight on it. Mr Mitchell also gave evidence about the nature of the evidence he proposes to give on the winding up application but given the conclusion I have reached already above, it is not necessary to describe it. I received that evidence over the objection of the applicants, who submitted that it was irrelevant. I did so on the express basis that it would be evidence for the purpose of the AVL application only and could not be relied upon as evidence in the proceeding as a whole.

Conclusions as to Mr Mitchell's expressed reasons for not coming to Australia

12    Counsel for the applicants made some brief submissions seeking to cast doubt on Mr Mitchell's expressed concerns about coming back to Australia. One was that the correspondence from the applicants and the interim receivers cannot be read as containing threats or warnings about Mr Mitchell's return to Australia. I accepted that; there was nothing untoward in the correspondence and Mr Mitchell's complaints that some of it should have been directed to his United States attorney went nowhere. I also took at face value the applicants' indication that they would not require Mr Mitchell to surrender his passport if he were to return to Australia. I also accepted that the detail provided in relation to the needs of Mr Mitchell's young son was scant.

13    Nevertheless, the reality is that Mr Mitchell is an undischarged bankrupt who has at least one creditor who has been adjudged to be owed a large sum of money of over US$36 million, and who also appears to be subject to the scrutiny of the Australian Taxation Office, which claims to be another creditor for some AU$3.6 million. There is a real chance that if he returns to Australia, one of those creditors, or one or more regulatory agencies, will seek to prevent him from leaving again, so that he may assist with their investigations or their attempts to recover the moneys owed. I therefore concluded that Mr Mitchell's fears as to that were real, and presented a substantial reason why he is to be believed when he says he will not come to Australian to give evidence. As will be seen, the real issue on the application, in my mind, was whether a reason of that kind was one that the Court should use as the foundation of the exercise of its discretion. This issue emerges from some of the cases about this and similar discretions, to which I will shortly turn.

Discretionary considerations informing the outcome of the AVL application

14    The Interested Respondents proceeded under s 47A(1) of the Federal Court Act and r 5.04(1) of the Federal Court Rules adds nothing to that section; I considered the application under the Act only.

15    Section 47A(1) simply provides that the Court 'may, for the purposes of any proceeding, direct or allow testimony to be given by video link, audio link or other appropriate means'. Section 47C(1) prohibits the exercise of that power unless the Court is satisfied that suitable facilities will be in place at each end of the video link. The Court is of course equipped with those facilities and, as appears from the orders made, I decided to impose conditions on the order under s 47A(1) which satisfied me that the facilities for Mr Mitchell (and Mrs Mitchell) to give evidence would be suitable at their end.

16    As to the discretion conferred under s 47A(1), since it is a departure from the usual manner in which evidence is given, a case must be made out for the exercise of the power, at least where that is opposed: see Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; (2009) 181 FCR 152 at [78] (Buchanan J). The parties were agreed that there is no general rule as to when the power will or will not be exercised.

17    Nevertheless, some broad considerations emerge from the judgment of Flick J in Australian Competition and Consumer Commission v Pirovic Enterprises Pty Ltd [2014] FCA 544 at [11], and see also his Honour's judgment in Corrigan v Commvault Systems (Australia) Pty Ltd [2011] FCA 107; (2011) 192 FCR 71 at [12] and that of Edmonds J in Australian Competition and Consumer Commission v StoresOnline International Inc [2009] FCA 717 at [14]. The discretion is to be exercised in the facts and circumstances of the individual case, and it would be unwise if not impossible to attempt any exhaustive list of relevant considerations. The overriding consideration must be what is in the best interests of the administration of justice, including the need to ensure that justice is done between the parties. Specific considerations mentioned by Flick J in Pirovic that were relevant here were the extent to which the cross-examination including as to credit may be inhibited by the witness not being present in person, and the reasons given by the witness for being unable to come to Australia.

18    In the circumstances, and subject to an important consideration I will mention shortly, I was satisfied that the Interested Respondents had made out a case that it was in the interests of the administration of justice to exercise the discretion in their favour here.

19    As I have already found, it was appropriate to proceed on the basis that Mr Mitchell's evidence will be potentially important to the outcome of the winding up applications. This was a weighty factor in view of the seriousness of the consequences for the corporate respondents if the winding up orders are made. A winding up order is likely to mean the end of the company as a functioning corporate entity, with its assets sold off to meet the claims of its creditors. If Mr Mitchell is able to provide evidence, for example, that a particular company has valuable assets which may be deleteriously affected if it is wound up, it would be important for the purposes of doing justice between the parties for the Court to receive that evidence. There was no suggestion that Mr Mitchell could be compelled to appear as a witness while he was in the United States. So the basic fact is that if he were not permitted to give evidence by video, the Court would be deprived of evidence potentially important to the fate of the respondent companies.

20    The applicants submitted, however, that it would prejudice them in the conduct of the cross-examination of Mr Mitchell if it were to be conducted by video link. They relied (implicitly) on the intangible factors set out by Buchanan J in Campaign Master at [78], such as loss of some of the solemnity of the occasion and the loss of 'a certain "chemistry" in oral interchanges in a courtroom … between cross-examiner and witness'. I have in the past accepted the importance of these matters (see the discussion in Australian Securities and Investments Commission v Wilson [2020] FCA 873 at [18]-[24]) and I still accept that they are important.

21    It was also necessary to acknowledge, however, the ongoing improvements in technology, and the experience the Court has gained in using it, especially during the COVID-19 pandemic. Those matters do not mean that orders under s 47A(1) will be granted as a matter of course. But where a substantial reason is advanced as to why such orders are necessary to do justice between the parties, and where the Court can be satisfied that any prejudice to the other parties can be appropriately minimised, it is open to the Court to make the orders. My experience of presiding over the cross-examination of witnesses by video link where credit was very much in issue persuaded me that here, if the appropriate conditions were imposed, any prejudice to the applicants could be minimised so that it would not outweigh the other imperatives described above.

Avoidance of the operation of Australian laws

22    All of the above was, as I have said, subject to another important consideration. It was this: Mr Mitchell's reason for being unwilling to travel to Australia is, in essence, because he does not wish to expose himself to the operation of Australian laws, including those as to bankruptcy, the enforcement of judgment debts, and taxation. The Court must not be seen to condone, much less assist, any unlawful avoidance of the consequences of any delinquency in performance of Mr Mitchell’s legal obligations or of the consequences of his bankruptcy.

The relevant cases

23    While there is no general rule to be applied in such circumstances, the reasoning in three cases cited to me, and another uncovered in my own research, were potentially helpful in assessing this consideration. I will consider each in turn.

24    The first is the decision of the House of Lords in Polanski v Condé Nast Publications Ltd [2005] UKHL 10, [2005] 1 WLR 637. There the appellant was a fugitive from the justice system of the United States of America, who was living in France. He sued the respondent for alleged libel. He applied for leave to give evidence in the defamation proceeding by video from France. The reason he gave was a fear that if he were to go to the United Kingdom to give that evidence, he might be extradited to the United States.

25    By a 3-2 majority, the House of Lords held that as a general rule for proceedings properly brought in the domestic courts, a claimant's unwillingness to come to the United Kingdom because he was a fugitive from justice was a valid reason, and could be a sufficient reason, for the making of an order for the claimant's evidence to be given by video conference.

26    In the leading majority judgment, Lord Nicholls of Birkenhead characterised the issue as whether the use of the court's procedures in this way would bring the administration of justice into disrepute: at [17], [20]. In resolving that issue, his Lordship pointed out that fugitives from justice were not, as such, precluded from enforcing their rights through the courts of the United Kingdom: at [25]. At [26] his Lordship said:

At first sight this may seem unattractive. It may seem unattractive that a person can, at one and the same time, evade justice in respect of his criminal conduct and yet seek the assistance of the courts in protection of his own civil rights. But the contrary approach, adopted in the name of the public interest, would lead to wholly unacceptable results in practice. It would mean that for so long as a fugitive remained 'on the run' from the criminal law, his property and other rights could be breached with impunity. That could not be right. Such harshness has no place in our law. Mr Polanski is not a present-day outlaw. Our law knows no principle of fugitive disentitlement.

27    And a little later:

28    … in the situation under consideration a VCF order will not assist the fugitive's evasion of justice. Whether a VCF order is made or not, the fugitive will not come to this country. He will not put himself at risk of arrest. In the present case, come what may, Mr Polanski's long-standing evasion of justice will continue. It will be unaffected by the court's decision on whether to make or refuse a VCF order. The effect of making a VCF order will be different. In the present case the effect will be to relieve Mr Polanski from one of the disadvantages of his fugitive status, namely, that he cannot travel freely to a country which has a relevant extradition treaty with the United States. To that extent a VCF order will enable Mr Polanski to sidestep one of the adverse consequences of his own criminal conduct and flight from justice. A VCF order will enable him to present his evidence orally to an English court in proceedings properly brought by him here, without being physically present in the court room.

29    Thus the practical consequences of the alternative answers on this issue are that if a court makes a VCF order, the fugitive will be relieved of a disadvantage otherwise attendant upon his fugitive status; but if the court refuses to make a VCF order, the fugitive's oral evidence will not be available at the trial. By adopting the latter course the court will in effect be saying be saying to the fugitive: 'unless you surrender your fugitive status you cannot pursue (or, as the case may be, defend) your civil proceedings.'

30    I understand the intuitive dislike of relieving a fugitive of a disadvantage which until recently was inherent in his self-created status. Until recently the fugitive had to make up his mind whether (a) to surrender his fugitive status and give his oral evidence in court or (b) to maintain his flight from justice and suffer whatever disadvantages this might have in civil proceedings to which he was a party as claimant or defendant.

31    I understand that. But overall the matter which weighs most with me is this. 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.

32    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.

28    Thus his Lordship held that the primary judge had been correct to permit the appellant's evidence to be given by video conference. His Lordship said at [33] that:

the 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. I respectfully consider the Court of Appeal fell into error by having insufficient regard to Mr Polanski's right to bring these proceedings in this country even though he is and will continue to be a fugitive from justice.

29    Lord Hope of Craighead and Baroness Hale of Richmond both agreed, on the basis of similar reasoning: see in particular [65]-[66], [69].

30    Lord Slynn of Hadley, in dissent, accepted that the appellant had a right to commence and pursue his libel action: at [47]. But at [50] his Lordship characterised the public policy that applied as follows:

Just as the United Kingdom has an interest in ensuring that people wanted here for criminal trial or following conviction here are brought here by extradition from other states, so by the very nature of the extradition process the United Kingdom has an interest in seeing that those who have been convicted are returned, in this case, to carry out their sentences. It seems to me that to accede to a request like the present, whose avowed sole aim is to avoid his being extradited, in the absence of other overriding considerations compelling the grant of the application, is contrary to public or judicial policy.

31    And at [51]:

The position might well be different if there is a valid self-standing reason for allowing the evidence to be given by video link and the avoidance of punishment or extradition are incidental consequences. So also it may in other cases be relevant to consider whether being a defendant rather than a plaintiff (so that there is no choice about being a party to the proceedings) would more readily justify the order for a video link.

32    Lord Slynn also considered it relevant (at [52]) that the appellant could have commenced libel proceedings in France, where he lived. At [56] his Lordship summarised his view as follows:

The task of the court here is one of balancing different policy considerations and not merely deciding case management. 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.

33    Lord Carswell, also in dissent, described the public policy (at [86]) as follows:

In pursuance of the principle that people should not be permitted to escape the consequences of their criminal conduct, the law discourages litigants from escaping the normal process of the law, a policy which the order permitting the appellant's evidence to be taken by VCF would tend to undermine.

34    His Lordship put more weight on this policy than on the competing policy in favour of access to justice. At [91] he said:

For the courts to permit a fugitive to give his evidence by video link so that he could stay out of the jurisdiction and avoid arrest would in my opinion affront the public conscience and bring the administration of justice into disrepute. I do not consider that that case could be distinguished by the argument that it would constitute an abuse of the process of the court and that the present case would not fall into that category. I do not find it necessary to attempt in this opinion to define the limits of abuse of the process of the court, for it seems to me that both that area of the law and the one invoked on behalf of the defendants in the present case are applications of the same principle, viz the power of the court to prevent misuse of its procedure in a way which would bring the administration of justice into disrepute.

35    The next case is Erceg v Erceg [2014] NZHC 2601. There the plaintiff, Millie Erceg, applied for an order that her son, Ivan Erceg, give evidence by way of video link. Mr Erceg lived in Italy. Although he was not a party, he had been directed to swear a list of documents in the case, suggesting that his involvement was greater than that of a mere witness: see at [17]. The reason he gave for being unwilling to come to New Zealand to give evidence was that the Inland Revenue Department was pursuing him for an unpaid tax debt, which had resulted in the issue of a warrant for his arrest.

36    At [26], Venning J accepted that there was a real risk that if Ivan Erceg would be arrested if he were to return to New Zealand to give evidence in support of his mother's case. On the basis of the reasoning of the majority in Polanski, his Honour accepted that this was good reason for Mr Erceg not wanting to return: at [27]. His Honour noted at [28]:

In the present case the position is even stronger from the plaintiff's point of view. It will be the plaintiff who will be disadvantaged in pursuit of her claim if Ivan Erceg refuses to return to New Zealand. It is the plaintiff, not Ivan Erceg, who will not be able to present her best case.

37    His Honour therefore gave leave for Ivan Erceg to give evidence by video link.

38    The next case is Seymour v Federal Commissioner of Taxation [2016] FCAFC 18; (2016) 241 FCR 361. The appellants had brought a proceeding in the Administrative Appeals Tribunal challenging decisions by the Commissioner to disallow objections to tax assessments in excess of $7 million. They lived in Mauritius. The Tribunal had given leave for them to give evidence in the proceeding by video link from a place outside Australia. The Commissioner applied for judicial review of that decision, and the primary judge had quashed it.

39    By a majority the Full Court upheld the primary judge’s decision. As a Full Court authority, if Seymour has a ratio decidendi on the present subject, then of course that would bind me. But it is difficult to discern a ratio in the reasoning of the three members of the Full Court.

40    Starting with the dissentient, Pagone J, at [107] his Honour set out an extract from Lord Nicholls' judgment in Polanski. Pagone J also noted in the same paragraph that Venning J had approved this in Erceg. His Honour then concluded as follows (still at [107]):

There is no reason to adopt a different approach in relation to the Tribunal considering the exercise of its power to receive evidence by video link under s 35A of the [Administrative Appeals] Tribunal Act. Each case must, of course, be decided on its own facts, and in some cases a wish to avoid action by regulatory authorities may militate against an application by the fugitive to pursue a case by giving evidence by video rather than by attendance in person, but permitting the giving of evidence by video in general furthers the proper administration of justice. There is nothing in the Tribunal Act which requires a rule to the contrary.

41    It is convenient to move next to the decision of Griffiths J, who with Siopis J made up the majority. At [65] his Honour disagreed with Pagone J's endorsement of the reasoning of the majority in Polanski. In summary Griffiths J's reasons for this disagreement were (see [69]-[75]):

(a)    it was better to avoid speaking in terms of a general rule in cases such as this where the court or tribunal is exercising a broad discretion - Griffiths J emphasised this by approving the primary judge's disavowal of any 'rule' and his Honour's statement that the circumstances of the case before him were unusual;

(b)    there was considerable force in the dissenting views in Polanksi; and

(c)    'More significantly, however, Polanski necessarily reflects its own particular facts' (this at [72]) and the case before the Full Court was different, so that it was 'unnecessary to state whether the majority view in Polanski is correct because the facts are distinguishable'.

42    His Honour identified the point of distinction between the two cases as follows (at [72]):

The Seymours are in a different position, having chosen to leave Australia lawfully before initiating Pt IVC proceedings and then indicating that they will not return to Australia to give evidence in that proceeding unless all the elements of their letter of demand are met.

43    His Honour had earlier emphasised a statement by the primary judge that the circumstances of the present case were unusual. The primary judge's reason for saying that was (quoted in Seymour at [73]):

The taxpayers point blank refused to come to Australia unless stipulated conditions were met. And assurance about a [Departure Prohibition Order] would not have been sufficient. The Commissioner's position about that issue could have no impact on the practical position.

44    Thus, while Griffiths J clearly favoured the reasoning of the minority in Polanski, that reasoning did not play a determinative part in his Honour's decision in Seymour. Griffiths J also considered Erceg and concluded (at [75]) that the reasoning of Venning J was not inconsistent with the reasoning of the primary judge in Seymour. In reaching this conclusion, his Honour appeared to put weight (at [74]) on the fact that in Erceg it was the plaintiff who would be disadvantaged if her son did not give evidence, and not the son himself.

45    Turning finally to the decision of Siopis J, who was joined in the majority by Griffiths J, his Honour did not mention Polanksi. In so far as his reasoning is relevant to this issue, it is as follows:

28    However, by leaving Australia once the Commissioner commenced an audit into their tax affairs, as the appellants did, the appellants have pre-empted the operation of s 14S of the Taxation Administration Act and have succeeded in leaving Australia without having made arrangements for the payments of their tax liability satisfactory to the Commissioner. In making their application to give evidence from abroad, the appellants seek to entrench their peremptory action, whilst still not making arrangements to the satisfaction of the Commissioner for the payment of their tax liability.

29    Whilst it is the case, as the appellants contend, that in making the impugned orders, the Tribunal did not 'assist' the appellants to avoid the operation of Australian law - this was achieved by the appellants' own conduct in fleeing Australia; nevertheless, in my view, the making of orders permitting the appellants to give evidence from abroad has a tendency to undermine the operation of the Taxation Administration Act.

30    This is a consideration which, in my view, the Tribunal ought to have taken into account. In failing to take into account the effect of the orders on the administration of the Taxation Administration Act and the wider public interest, the Tribunal failed to have regard to a relevant consideration and fell into jurisdictional error. The Tribunal did not, therefore, consider whether leave should be refused on public policy grounds, or whether the competing elements of public interest comprising the appellants' right to challenge their tax liability, and the proper administration of the Taxation Administration Act, could be accommodated by fashioning any leave to give evidence from abroad in a manner which better reflected the competing interests. Thus, for example, in this latter respect, had the Tribunal directed its mind to this consideration, the Tribunal may have considered whether to impose, as a condition of the leave to adduce evidence by video link from abroad, that the appellants provide security within Australia for the payment of the tax liability.

46    It is not necessary to connect these observations with the conclusion of jurisdictional error on the part of the Administrative Appeals Tribunal which the primary judge and the majority in Seymour reached. Jurisdictional error is not the question here. But Siopis J considered that the tendency of an order for the giving of evidence abroad by persons who had failed to make satisfactory arrangements for the discharge of their tax liability to undermine the operation of the Taxation Administration Act was a relevant consideration in the exercise of the Tribunal's discretion. That was a discretion similar to the one that I was asked to exercise here. So on the approach endorsed by Siopis J at [30], it will be relevant to the exercise of that discretion to weigh as competing considerations the public interest in permitting a person to engage the process of the courts and the public interest in the proper administration of relevant legislation. Consistently with the principles canvassed above, this does not rise to the status of a rule; it is simply a legitimate approach if relevant on the circumstances of a particular case.

47    Clearly the majority in Seymour had reservations about the approach of the majority in Polanksi. In the case of Griffith J, those reservations were strong. But they did not coalesce to any ratio that bound me not to follow Polanski. What I took away from Seymour, though, with respect, is that it reconfirms that in cases like this, which do involve the exercise of a broad discretion aimed at promoting the interests of justice, it is not appropriate to fetter the discretion by adopting inflexible rules.

48    The final case is Gumm v Commissioner of Taxation (No 3) [2025] FCA 927. There, the taxpayer, who lived in Thailand, sought an order under the Foreign Evidence Act 1994 (Cth) permitting him to give evidence on commission in the United Kingdom. The proceeding was an 'appeal' in this Court from a decision made by the Commissioner on an objection to the assessment of certain tax liabilities. But the taxpayer had admitted that he owed substantial tax debts (apparently different from the tax assessment he was challenging) and his unwillingness to give evidence in Australia was because if he returned to this country, he might become subject to a Departure Prohibition Order imposed by the Commissioner.

49    After considering Polanski, Seymour and Erceg, Derrington J said that the reasons of Griffiths J in Seymour (original emphasis):

45    … 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 [Foreign Evidence] 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).

Application to this case

50    It is clear from the authorities canvassed above that in Australia, as distinct from the United Kingdom, no general rule has developed to deal with cases of this kind. The power must always be exercised in the court's discretion in terms that best promote the proper administration of justice in the circumstances of each case.

51    Against that backdrop, though, it is possible to derive the following guidance from these authorities.

52    While no binding principles emerge, the weight of judicial opinion in this country has not been to accept wholeheartedly the reasoning of the majority in Polanski. Griffiths J in Seymour and Derrington J in Gumm all but say as much, and while Siopis J does not refer to Polanski, his Honour also seemed concerned that if the court (or a tribunal) were to permit an applicant to give evidence by video so as to avoid returning to this country and submitting to the operation of Australian law in respect of obligations owed by him or her, that could undermine the operation of Australian legislation. His Honour did not elevate that into an overriding consideration, however, just one that the Tribunal in that case was required to take into account. But Pagone J in dissent in Seymour is the only Australian judge to have expressly endorsed the reasoning of the majority in Polanski.

53    This means that it would be wrong for me to treat as determinative the key aspects of the majority reasoning in Polanski, namely that by granting an AVL order the court is not assisting the fugitive’s evasion of justice, and that consistency and coherence mean that the intuition that it is should not be given weight (I do not mean by this to be drawing any close comparison between Mr Polanski’s status as a fugitive and the position of Mr Mitchell).

54    Nevertheless, the Australian cases in which Polanski has been considered were all cases where applicants were seeking to invoke the Australian legal system to assert rights under the taxation legislation, and the same applicants were refusing to submit themselves to the operation of that legislation. That this was important is apparent from the reasons of Griffiths J set out at [43]-[45] above, of Siopis J set out at [46]-[47] above, and of Derrington J at [49] of Gumm (quoted at [50] above). For that matter, considerations of this kind also appear to have informed the dissenting opinion of Lord Slynn in Polanski, as appears from [32] above.

55    This case was different to all those situations, and in my view engaged somewhat different considerations. While each case depends on its own facts, this case seemed closest to the situation in Erceg, where the plaintiff was seeking vindication of her rights and her son was the potential witness who was unwilling to submit himself to the laws of New Zealand. Venning J allowed him to give evidence by video link and neither Griffiths J in Seymour nor Derrington J in Gumm saw any inconsistency between that result and reasoning and their Honours' own views.

56    Here, the witness in question, Sam Mitchell, is not a party to the proceeding and is in no way seeking to invoke the Australian legal system in vindication of his rights. I was conscious, of course, of his close family relationship to each of the Interested Respondents. But no submission was made to me that they were acting at his direction acting in concert with him so as to achieve some objective of his.

57    That being so, it was appropriate to proceed on the basis that the Interested Respondents are acting as respondents to the applicants' winding up applications, and as proponents of their own application for orders in respect of various companies and trusts, in the bona fide defence or assertion of their rights, as the case may be. Sam Mitchell is a potentially important witness for them. That is so in relation to an application to which they are respondents, where they are not seeking to invoke the Australian legal system. And that application requires the Court to decide whether to place a number of companies into liquidation with consequences that may extend beyond the parties to this proceeding.

58    Yet Sam Mitchell is unwilling to return to Australia to give evidence. His reasons for that unwillingness are not colourable, trivial or misconceived. There was no suggestion that he was compellable to travel here to give his evidence. Nor was there any suggestion that the Interested Respondents bear any responsibility for, or complicity in, such defaults (or alleged defaults) as have led him to be in his current position, and current location.

59    The upshot was that for reasons that cannot be laid at the feet of the Interested Respondents, they and the Court would have been deprived of potentially material evidence unless the AVL application were granted in respect of Sam Mitchell. For reasons set out above, I was satisfied that this could be done on conditions that would appropriately minimise any prejudice to the applicants. And in the circumstances just outlined, I did not consider that this outcome would undermine the operation of the taxation legislation or the Bankruptcy Act, or that it was otherwise contrary to public or judicial policy.

Costs

60    There was dispute about the appropriate costs orders to make. The Interested Respondents submitted that costs should follow the event. They submitted that they had put a reasonable position to the applicants about the giving of both Wendy Mitchell's and Sam Mitchell's evidence and the applicants had not accepted that, putting them to the expense of preparing affidavits of each of those witnesses. They submitted that they should receive the costs of those affidavits.

61    The applicants, however, submitted that they should receive their costs of the application from the Interested Respondents. They characterised the Interested Respondents as having sought an indulgence. They also submitted that the Interested Respondents took no steps to satisfy them, or the Court, of the conditions made necessary by s 47C of the Federal Court Act.

62    I do not accept that the Interested Respondents were seeking an indulgence, as such (see Polanski at [27]), but they were seeking a departure from the usual course. The applicants were entitled to have reservations about that departure and entitled to see the evidence in support of it. They were also entitled to insist on conditions that in essence the Court imposed. On the other hand, the applicants chose to resist the application to the end, unsuccessfully, thus putting the Interested Respondents to at least some unnecessary expense. In all the circumstances I determined that it was appropriate for costs to lay where they fell, so that there was no order as to costs.

Associate:

Dated:    5 February 2026

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