Federal Court of Australia

Kerrigan Law Pty Ltd v Commissioner of Taxation [2026] FCA 1438

ORDERS

THE COURT ORDERS THAT:

Further Amended Originating Application

1.    Pursuant to r 8.21 of the Federal Court Rules 2011 (Cth), the applicants have leave to file and serve by 24 September 2026 their further amended originating application as exhibited to the affidavit of Raphael Grossman affirmed 7 September 2026 (save that the reference to annexure “C” in paragraph 1l(ii) of the ‘Grounds of Application’ be amended to annexure “B”).

Requests for witnesses to appear

2.    Pursuant to s 168(2) of the Evidence Act 1995 (Cth), leave be given for the applicants to make requests to the first respondent under ss 166 and 167 of the Evidence Act 1995 (Cth) in the form exhibited at page 12 of Exhibit RG-3 to the affidavit of Raphael Grossman affirmed 7 September 2026.

3.    Pursuant to s 169(1)(a) of the Evidence Act 1995 (Cth), the first respondent is required to call Mr Shivam Singh as a witness at the hearing commencing on 30 September 2026, limited in the first instance to the question of whether the timestamps on the notes exhibited at pages 155 to 170 of Exhibit LS-1 to the affidavit of Mr Liam Southam sworn 30 July 2026 were written contemporaneously with the notes themselves.

4.    The first respondent is not required to call Mr Jarred Needham as a witness at the hearing commencing on 30 September 2026.

Extension to evidence and submissions

5.    The first respondent file and serve any evidence from Mr Shivam Singh on which it intends to rely by 4:00 pm on 24 September 2026.

Production of documents

6.    By 24 September 2026, the first respondent produce:

(a)    a copy of the draft submission (if such a document exists) referred to in paragraph [17(a)] of the statement of reasons dated 7 November 2025, exhibited at pages 197 to 201 of Exhibit RG-121225 to the affidavit of Raphael Grossman affirmed 12 December 2025; and

(b)    copies of table 1 and table 2 referred to in paragraph 4.2 of the written submission dated 27 May 2025, exhibited at pages 1 to 14 of Exhibit LS-1 to the affidavit of Mr Liam Southam sworn 30 July 2026.

7.    The applicants’ interlocutory application dated 7 September 2026 otherwise be dismissed.

8.    Each party bear their or its own costs of the interlocutory application dated 7 September 2026.

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

REASONS FOR JUDGMENT

MOORE J:

1    The substantive proceedings before me are judicial review proceedings concerning decisions of the first respondent, the Commissioner of Taxation, to exercise various compulsory information-gathering powers under the Taxation Administration Act 1953 (Cth) (TAA).

2    The applicants in the proceeding filed an interlocutory application on 8 September 2026, just over three weeks before these proceedings are listed for final hearing. Because the interlocutory relief sought affected the issues to be decided and evidence to be led at that hearing, it was necessary to deal with this interlocutory application on an expedited basis. I heard the interlocutory application on 17 September 2026, indicated the result at the conclusion of the hearing, and made formal orders on 22 September 2026. These are the reasons for the making of those orders.

3    The first applicant, Kerrigan Law Pty Ltd, and the fourth applicant, Capital Financial Advisory Pty Ltd, are, respectively, an incorporated legal practice and an accounting firm. The second applicant, Mr Sam Cassaniti, was a consultant to the fourth applicant at various times. The third applicant, Ms Thi Linh Trinh, is Mr Cassaniti’s wife.

4    In general terms, Mr Cassaniti has been the subject of an investigation by the Australian Taxation Office into various suspected tax evasion schemes. One result of those investigations is proceedings NSD 193 of 2025 and NSD 194 of 2025, commenced by liquidators funded by the Australian Taxation Office on behalf of various companies in liquidation against defendants including Mr Cassaniti and Ms Trinh (the Liquidator Proceedings). The Liquidator Proceedings allege, again in general terms, that Mr Cassaniti was a de facto director of various companies to which money was paid that should have been paid to the Australian Taxation Office, and seek to recover those payments (plus damages).

5    These proceedings were commenced by the applicants under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth), in relation to two decisions of the Commissioner. The first decision is a decision taken on 26 May 2025 pursuant to s 353-15 TAA to enter real property associated with Mr Cassaniti to inspect, examine, make copies of, or take extracts from, certain documents (Access Decision). The second is a decision taken pursuant to s 353-10 TAA to issue a notice to Digital Trace Australia Pty Ltd and its principal, the second respondent Mr Briston Talbot, to furnish information to the Commissioner (Notice Decision).

Pleading Amendments

6    By prayer 1 of the interlocutory application, the applicants seek leave to amend their further amended originating application. Setting aside limited ‘housekeeping’ amendments that the parties agree are inconsequential, the substantive amendments comprise an additional ground in respect of the Access Decision and an additional ground in respect of the Notice Decision.

7    In respect of the Access Decision, the applicants seek leave to raise the following additional Ground 1(l) (incorporating a typographical correction identified in the applicants’ submissions):

1.    Access Decision. In purporting to exercise his powers under section 353-15 of the TAA, the First Respondent:

[…]

l.     acted in excess of, or not in conformity with, the power granted to him under s 353-15 of the TAA, such that the Access Decision was invalid and of no effect, or otherwise contrary to law for the following reasons:

i.    the Access Decision was not expressed to be “for the purposes of a taxation law”;

ii.     the Access Decision purported to authorise taking access to land, premises or places and there was no decision to authorise officers at all reasonable times to enter the land, premises or places identified in annexure “B” to the Submission for Intended Access Without Notice and to remain on any of those places mentioned and referred to in annexure “B”;

iii.    the Access Decision purported to authorise access to documents and inspection of documents without the limitation imposed by paragraph (c) of s 353-15(1) of the TAA and the inspection of goods or other property without the limitation imposed by paragraph (d) of s 353-15(1) of the TAA; and

iv.    in conducting the access visits, the Commissioner permitted his officers to access and remain at the premises without an authority signed by the Commissioner stating that the individual is authorised to exercise powers under s 353-15(1), which was unlawful and constituted a trespass,

section 353-15(2) of the TAA and sub-sections 5(1)(b), 5(1)(d) and 5(1)(j) of the ADJR Act.

8    In respect of the Notice Decision, the applicants seek leave to raise the following additional Ground 3(e):

3.    The Second Notice Decision. In purporting to exercise his powers under section 353-10 of the TAA the First Respondent:

[…]

e.    acted in excess of the power granted to him under s 353-10(1)(a), such that the Second Notice Decision was invalid and of no effect, or was otherwise contrary to law, by requiring the giving of information concerning documents which he is not empowered to require be produced to him under s 353-10(1)(c): sub-sections 5(1)(d), 5(1)(e), 5(1)(f), 5(1)(j) and 5(2)(b) of the ADJR Act.

9    The applicants submit that leave should be granted on the basis that these amendments fall within r 8.21(1)(g) of the Federal Court Rules 2011 (Cth) (Rules), which provides the following:

Rule 8.21 Amendment generally

(1)     An applicant may apply to the Court for leave to amend an originating application for any reason, including:

[…]

(g)    to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises:

(i)    out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the applicant; or

(ii)    in whole or in part, out of facts or matters that have occurred or arisen since the start of the proceeding.

10    The applicants also contend that the amendments do not require rebutting evidence and can be addressed by the respondents by way of submission alone. It is said the amendments have been raised with sufficient time before the hearing for the respondents to prepare those submissions without being prejudiced.

11    The Commissioner submits that the amendments have been made at a late stage in the proceedings, with no explanation offered for the lateness. However, the Commissioner does not submit that further evidence is required and that any prejudice would be caused in that sense. Rather, the Commissioner’s principal argument against leave being granted is his contention that each of the substantive proposed amendments has no reasonable prospect of success. In his written submissions on the interlocutory application, the Commissioner identifies in succinct terms what he says are the deficiencies in the case sought to be added. The Commissioner also submits that the hearing is already tightly compressed into two days and any additions to the issues to be determined at the hearing have the potential to cause prejudice because they may render it difficult to get through the issues in the time available.

12    Given the Commissioner’s principal objection to the proposed amendments is the merits of the additional grounds, and given that the Commissioner has already addressed those merits to a considerable extent, I consider that, as a matter of case management, the most efficient course is for the amendment to be allowed and for the additional points to be considered at the final hearing. It is not efficient for the merits of the new arguments to be dealt with on an interlocutory hearing, particularly when they concern the same underlying substratum of facts and issues that will be considered at the final hearing. Given the submissions that the Commissioner has already made as to the new grounds, it seems likely that the new grounds can be accommodated without any material dislocation to the final hearing.

13    For these reasons, the applicants should be granted leave to amend their further amended originating application in the form proposed, subject to the typographical corrections identified at the hearing.

Evidentiary requests

14    The balance of the interlocutory application relates to the applicants’ proposal to make requests of the Commissioner pursuant to Part 4.6, Div 1 of the Evidence Act 1995 (Cth) (Evidence Act).

15    Section 166 Evidence Act identifies various ‘requests’ that a party may make of another party:

166 Definition of request

In this Division:

"request" means a request that a party (the requesting party) makes to another party to do one or more of the following:

(a)    to produce to the requesting party the whole or a part of a specified document or thing;

(b)    to permit the requesting party, adequately and in an appropriate way, to examine, test or copy the whole or a part of a specified document or thing;

(c)    to call as a witness a specified person believed to be concerned in production or maintenance of a specified document or thing;

(d)    to call as a witness a specified person in whose possession or under whose control a specified document or thing is believed to be or to have been at any time;

(e)    in relation to a document of the kind referred to in paragraph (b) or (c) of the definition of document in the Dictionary--to permit the requesting party, adequately and in an appropriate way, to examine and test the document and the way in which it was produced and has been kept;

(f)    in relation to evidence of a previous representation--to call as a witness the person who made the previous representation;

(g)    in relation to evidence that a person has been convicted of an offence, being evidence to which subsection 92(2) applies--to call as a witness a person who gave evidence in the proceeding in which the person was so convicted.

16    Section 167 Evidence Act sets out the matters in respect of which requests may be made:

167 Requests may be made about certain matters

A party may make a reasonable request to another party for the purpose of determining a question that relates to:

(a)    a previous representation; or

(b)    evidence of a conviction of a person for an offence; or

(c)    the authenticity, identity or admissibility of a document or thing.

17    On 24 August 2026, the applicants originally served the Commissioner with eleven requests. The identified basis for each of these requests was “previous representations”, within the meaning of s 167(a) Evidence Act, said to have been made in lay evidence served by the Commissioner on 31 July 2026. The parties proceeded on the apparently agreed basis that the requests were in relation to previous representations.

18    At the hearing of the interlocutory application, only two requests were pressed.

19    The first request pressed by the applicants is a request that the Commissioner “[c]all Mr Jarred Needham to give evidence in relation to the ‘Submission’” (Needham Request). As the Commissioner’s evidence describes, Mr Needham created a submission that provided the legal and administrative authority for the Access Decision (the Submission), which is described in the following terms (correcting a typographical error):

[7]    The legal and administrative authority for the AWONs [Access Without Notice] relevant to these proceedings was established by a formal agreement signed on 6 June 2025 by Mr Alister Boyes, Assistant Commissioner, Superannuation and Employer Obligations, ATO (Agreement), based on a submission dated 27 May 2025 by Mr Jarred Needham, Acting Assistant Commissioner, Private Wealth Phoenix Program, ATO (Submission). A copy of the Submission is located at pages 1-14. A copy of the Agreement is located at pages 15-23.

20    The Submission is a submission from Mr Needham to Mr Alister Boyes in connection with an agreement executed by Mr Boyes that the access be undertaken without notice. In other words, Mr Needham made a decision (i.e. the Access Decision) that there should be access to the relevant premises, and Mr Boyes granted an authorisation that this access be access without notice (rather than with notice).

21    The applicants characterise the Submission as a “previous representation” as to the material that was before Mr Needham in making the Access Decision, and the basis on which the Access Decision was made. Mr Needham is identified in the applicants’ further amended originating application as the decision-maker in respect of that decision. The Submission was prepared for the further step of authorising access without notice.

22    The second requests pressed by the applicants are requests that the Commissioner call Mr Shivam Singh to give evidence about conversations that Mr Southam deposes to having occurred during an ‘Access Without Notice’ visit conducted pursuant to the Access Decision at the residential premises of Mr Cassaniti and Ms Trinh on 9 and 10 September 2025 (AWON), as well as in relation to a copy of notes exhibited to Mr Southam’s affidavit and said to have been created by Mr Singh that are said to be a contemporaneous record of things discussed on-site with Ms Trinh during the carrying out of the AWON (Singh Requests).

23    The applicants submit that Mr Singh’s notes are a previous representation as to the circumstances in which Ms Trinh did or did not provide consent during the AWON for the Commissioner to image data stored on electronic devices, and to access and copy emails from her email account. Specifically, it is contended that Mr Singh’s notes contain representations as to the demeanour and state of Ms Trinh during the relevant interactions, and representations as to the time that certain events occurred.

Relief sought

24    Two forms of relevant relief were sought on the present interlocutory application.

25    First, the applicants sought leave to make requests in relation to previous representations outside the relevant statutory limitation period of 21 days. That timeframe and the power for leave to be granted to make requests outside that timeframe are provided by s 168 Evidence Act:

168 Time limits for making certain requests

(1)    If a party has given to another party written notice of its intention to adduce evidence of a previous representation, the other party may only make a request to the party relating to the representation if the request is made within 21 days after the notice was given.

(2)    Despite subsection (1), the court may give the other party leave to make a request relating to the representation after the end of that 21 day period if it is satisfied that there is good reason to do so.

[…]

26    It was common ground between the parties that the applicable time limitation for the present requests is that provided in s 168(1) Evidence Act, and that the requests were made one day after this time limit had elapsed. This has the effect that leave pursuant to s 168(2) is required for the requests to be made. To grant the applicants leave to make these requests, I must be satisfied that the requests fall within the form of requests that may be made under s 167, and that there is a “good reason” for leave to be granted to make the request out of time.

27    The second form of relief is a direction that the Commissioner comply with the applicants’ requests, pursuant to s 169 Evidence Act, which relevantly provides as follows:

169 Failure or refusal to comply with requests

(1)    If the party has, without reasonable cause, failed or refused to comply with a request, the court may, on application, make one or more of the following orders:

(a)    an order directing the party to comply with the request;

(b)    an order that the party produce a specified document or thing, or call as a witness a specified person, as mentioned in section 166;

(c)    an order that the evidence in relation to which the request was made is not to be admitted in evidence;

(d)    such order with respect to adjournment or costs as is just.

    […]

(3)    The court may, on application, direct that evidence in relation to which a request was made is not to be admitted in evidence if an order made by it under paragraph (1)(a) or (b) is not complied with.

(4)    Without limiting the circumstances that may constitute reasonable cause for a party to fail to comply with a request, it is reasonable cause to fail to comply with a request if:

(a)    the document or thing to be produced is not available to the party; or

(b)    the existence and contents of the document are not in issue in the proceeding in which evidence of the document is proposed to be adduced; or

(c)    the person to be called as a witness is not available.

(5)    Without limiting the matters that the court may take into account in relation to the exercise of a power under subsection (1), it is to take into account:

(a)    the importance in the proceeding of the evidence in relation to which the request was made; and

(b)    whether there is likely to be a dispute about the matter to which the evidence relates; and

(c)    whether there is a reasonable doubt as to the authenticity or accuracy of the evidence that is, or the document the contents of which are, sought to be proved; and

(d)    whether there is a reasonable doubt as to the authenticity of the document or thing that is sought to be tendered; and

(e)    if the request relates to evidence of a previous representation--whether there is a reasonable doubt as to the accuracy of the representation or of the evidence on which it was based; and

(f)    in the case of a request referred to in paragraph (g) of the definition of request in section 166--whether another person is available to give evidence about the conviction or the facts that were in issue in the proceeding in which the conviction was obtained; and

(g)    whether compliance with the request would involve undue expense or delay or would not be reasonably practicable; and

(h)    the nature of the proceeding.

28    The applicants’ alternative or fallback position was that orders should be made under s 169(3) Evidence Act that certain evidence which the requests relate to not be admitted in evidence.

Request to extend time

29    Given that the applicants were only one day late, and given the expedited nature of the hearing of the applicants’ interlocutory application, I would prefer to focus on whether the Court should make a substantive order rather than whether the Court should extend time by one day. The Commissioner was not able to identify any particular prejudice resulting from the very slight delay. I make an order extending time.

30    I nevertheless observe that the Commissioner adopted the position that leave should not be granted for the applicants to make their requests as the requests are not “reasonable requests” within the meaning of s 167 Evidence Act. For requests that relate to previous representations, which was the agreed characterisation of the present requests, the initial step in that inquiry is “to identify the representation, express or implied, which might be relevant for the purposes of the proceeding”: Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307 at [53] (Trimcoll). In Trimcoll, Basten JA, in determining the application of s 167(a), held that the existence of such previous representations which are likely to be relied on at trial is sufficient for a request in respect of such representations to be presumptively reasonable (at [61]–[62]):

[61]    It is sufficient for the purposes of ss 166–169 of the Evidence Act that there are previous representations which are likely to be relied on during the trial in order to render a request under s 167 reasonable. It is not necessary to determine the correctness of Trimcoll’s submission that no reasonable request could be made of it because its purpose in tendering the documents would be to demonstrate that it made payments because the documents were provided to it, and not based on any fact asserted in them, or at least not any fact in dispute in the proceedings. If it paid money on an invoice, it would appear to have relied upon a representation that certain work had been done pursuant to a contractual obligation requiring that the payment be made. Accordingly, it is not necessary to determine whether a request could be made in relation to a document or representation which was not excluded by the hearsay rule, either before the commencement of the relevant provisions of the Evidence Act, or thereafter.

[62]    It is unnecessary and inappropriate to define the relevant purposes of the request in any more detail because such requests will usually be made prior to trial and at a time when there may be doubt about the precise nature of the factual matters in issue. Whether the questions identified will clearly arise, may arise or are most unlikely to arise will involve matters of judgment which may go to the reasonableness of the request or of the refusal to comply.

Whether an order should be made under s 169 – Needham Request

31    The Needham Request is made in respect of a supposed representation as to Mr Needham’s state of mind in making the Access Decision, which is said to be relevant to the two grounds on which the applicants impugn the Access Decision. The first is the newly introduced ground of review (see [7] above) which contends that the Access Decision was beyond the relevant statutory power. The Access Decision was made in reliance on s 353-15 TAA, which relevantly provides:

353-15 Access to premises, documents etc.

(1)    For the purposes of a taxation law, the Commissioner, or an individual authorised by the Commissioner for the purposes of this section:

(a)    may at all reasonable times enter and remain on any land, premises or place; and

(b)    is entitled to full and free access at all reasonable times to any documents, goods or other property; and

(c)    may inspect, examine, make copies of, or take extracts from, any documents; and

(d)    may inspect, examine, count, measure, weigh, gauge, test or analyse any goods or other property and, to that end, take samples.

32    The applicants identify two aspects of the Submission that depart from the statutory language and are said to therefore support this ground of review. The first is an introductory statement, at paragraph 1.2 of the submission, that expresses an intention to “take access to land, premises or place(s)”, as opposed to an intention to “enter and remain on any land, premises or place”, being the language of s 353-15(1)(a) TAA. The second departure from the statutory language is annexure C, which is headed “documents, goods or other property to inspect, examine, make copies of, take extracts from, count, measure, weigh, gauge, test, analyse, or take samples of”. It is said this includes a range of activities in respect of the documents broader than those permitted by s 353-15(1)(c) TAA, namely activities that are permitted by s 353-15(1)(d) TAA in respect of goods or other property.

33    Counsel for the applicants foreshadowed a submission that these discrepancies suggested that Mr Needham misapprehended or misunderstood the statutory text in s 353-15 TAA and created a Submission that caused the Commissioner to proceed in making an Access Decision that was not permitted by s 353-15 TAA. The applicants contend that Mr Needham should be made available for cross-examination as to his understanding of the statutory test.

34    Second, the submission is said to relate to the applicants’ broad ground 1(c), which is in the following terms:

1.    Access Decision. In purporting to exercise his powers under section 353-15 of the TAA, the First Respondent:

[…]

c.    interfered with the course of justice, undermined the authority of the court or otherwise abused the process of the Court or committed a contempt of Court by taking access to documents and information concerning extant proceedings in the Federal Court of Australia where the First Respondent is a party to those proceedings and the information accessed was taken from lawyers for the counterparty to those proceedings […]

35    In effect, this is an allegation that the Commissioner exercised his powers to assist his position in the Liquidator Proceedings, rather than for the purposes of a taxation law as is required. The Submission, as the basis of the legal and administrative authority for the Access Decision, is said to be probative of the purpose of that Access Decision. In particular, the applicants suggested the Access Decision was in fact taken in advance of the Submission being created, on the basis of a draft iteration of the Submission. The foreshadowed submission appears to be a submission that the Submission was not exhaustive of the material taken into account by Mr Needham in his decision-making that ultimately led to the Access Decision being made.

36    I do not consider that there is a reasonable basis for making an order under s 169. The present proceeding is a judicial review proceeding that seeks to impugn the Access Decision. The applicants have failed to identify any basis on which any of their claims would be relevantly assisted by oral evidence from Mr Needham, or any basis for thinking that there was probative evidence he could give.

37    At its highest, the applicants’ submission is that they should be permitted to cross-examine Mr Needham as to his state of mind and information that was before him at the time of making the Access Decision. Specifically, the applicants observe that Mr Needham’s statement of reasons refers to a draft iteration of the Submission, and the Submission itself refers to tables referred to in the Submission that identify premises associated with Mr Cassaniti (Table 1) and documents believed to be held at those premises (Table 2). The existence and speculated content of these materials are said to suggest that the representation in Mr Southam’s affidavit of the basis of the Access Decision is inaccurate and it is necessary to cross-examine Mr Needham to elicit the full range of materials to which he had regard at the time of making the Access Decision.

38    The prospect of Mr Needham having any detailed memory of this granular information seems remote. Further, it seems that the applicants are adequately protected by requiring the Commissioner to produce the draft Submission, Table 1 and Table 2.

39    I refuse to make any order in relation to the Needham Request.

Reasonableness of the Singh Requests

40    There is a factual dispute in the substantive proceeding. In general terms, the applicants assert that Ms Trinh did not provide any proper consent to the copying or imaging of electronic devices at the premises. This involves a factual dispute as to the conversation that took place primarily between Mr Southam and Ms Trinh. In that respect, Mr Southam gives evidence of the conversation, and relies upon certain alleged contemporaneous notes of Mr Singh.

41    Ms Trinh’s evidence is that she signed the consent document after being “pressured” by Mr Southam for “one to two hours”. In contrast, Mr Southam deposes that the relevant conversation took 10 minutes.

42    The notes of Mr Singh purport to contain time entries before each small section of the note. If those time entries are correct, then this may have implications for the reliability of Ms Trinh’s account of the events in question. Specifically, in relation to the conversations described above, the notes record the following:

10:12 AM – Briefed Trinh on searching through her devices. Offered her the two options:

-    image

-    searching

Advised her right to LPP, and her right to legal advise [sic]. Trinh is happy to provide consent for device imagery.

10:24 AM – Consent form signed by Trinh.

43    However, an issue has arisen in relation to these time entries. The applicants point to the circumstance that the time entries appear to be recorded in a different ink or by a different pen from the remainder of the notes. The applicants say that there is an issue as to the authenticity of the notes, and particularly whether the time entries are contemporaneous time entries as they purport to be, or whether they were added later in a form of reconstruction of events.

44    The applicants submit that the Commissioner is likely to rely on Mr Singh’s note to support Mr Southam’s account of these events, and it is therefore a previous representation that is in relation to issues in this proceeding. One basis on which this is put is that Mr Singh’s reference to Ms Trinh being “happy to provide consent” is a representation of Ms Trinh’s disposition during the relevant interaction. As counsel for the Commissioner conceded at the interlocutory hearing, that would be an implausible reading of Mr Singh’s notes. I regard the reference to Ms Trinh being “happy” as referring to her assent to that course of action rather than a representation as to her mood or demeanour.

45    I am more persuaded by the applicants’ emphasis on the timestamps in Mr Singh’s notes and the clear differences between those timestamps and Ms Trinh’s evidence. It is clear that the Commissioner will rely on Mr Singh’s notes as a contemporaneous record that is probative of this factual dispute. That is, these notes will be relied on in order to support the accuracy of Mr Southam’s account, including in relation to the time certain events occurred.

46    Having reviewed the notes, observing that there are apparent inconsistencies in the ink colour and stroke weight throughout Mr Singh’s notes, and in light of the issue raised and the importance of that issue to the factual dispute in the proceedings, I consider that there is a proper basis for considering the making of an order under s 169.

47    The applicants seek a direction pursuant to s 169(1)(a) Evidence Act that the Commissioner comply with their requests. To make such an order, I must be satisfied that the Commissioner has, without reasonable cause, failed or refused to comply with a request. The consideration of this question is artificially foreshortened by the limited time before the hearing. I infer from the Commissioner’s position taken at the hearing that, in the absence of a direction under s 169(1) Evidence Act, the Commissioner refuses to comply with the requests.

48    In order to make such a direction, I must be satisfied that this refusal is “without reasonable cause”: s 169(1) Evidence Act. Section 169(4)–(5) Evidence Act, reproduced below, set out certain matters that I may have regard to in determining whether such a refusal occurred with reasonable cause, and which I must take into account in making such a direction generally:

169 Failure or refusal to comply with requests

[…]

(4)    Without limiting the circumstances that may constitute reasonable cause for a party to fail to comply with a request, it is reasonable cause to fail to comply with a request if:

(a)    the document or thing to be produced is not available to the party; or

(b)    the existence and contents of the document are not in issue in the proceeding in which evidence of the document is proposed to be adduced; or

(c)    the person to be called as a witness is not available.

(5)    Without limiting the matters that the court may take into account in relation to the exercise of a power under subsection (1), it is to take into account:

(a)    the importance in the proceeding of the evidence in relation to which the request was made; and

(b)    whether there is likely to be a dispute about the matter to which the evidence relates; and

(c)    whether there is a reasonable doubt as to the authenticity or accuracy of the evidence that is, or the document the contents of which are, sought to be proved; and

(d)    whether there is a reasonable doubt as to the authenticity of the document or thing that is sought to be tendered; and

(e)    if the request relates to evidence of a previous representation--whether there is a reasonable doubt as to the accuracy of the representation or of the evidence on which it was based; and

(f)    …; and

(g)    whether compliance with the request would involve undue expense or delay or would not be reasonably practicable; and

(h)    the nature of the proceeding.

49    In the present circumstances, Mr Singh’s note is potentially of central importance to the resolution of a ground of the substantive application. There is no suggestion that Mr Singh is not available to give evidence. There is at least an issue raised as to the authenticity of the time entries on his notes. The evidence that I anticipate being given would most likely be quite limited in scope and would not involve any undue expense or delay.

50    For this reason, it is appropriate that I grant the applicants leave to request that Mr Singh be made available for cross-examination and that the original version of his note be produced. I will order pursuant to s 169(1)(a) of the Evidence Act that the Commissioner call Mr Singh as a witness in the proceeding. In the first instance, his evidence will be limited to the question of whether the timestamps on the notes exhibited at pages 155 to 170 of Exhibit LS-1 to the affidavit of Mr Liam Southam sworn 30 July 2026 were written contemporaneously with the notes themselves. I say “in the first instance”, because it may be that something emerges from evidence on that topic which raises a wider issue and requires a broader exploration. That is a matter that can appropriately be managed by the Court as it occurs.

Other orders

51    Upon indication at the hearing that I would order Mr Singh to attend the final hearing for cross-examination, the Commissioner sought leave to file evidence in chief from Mr Singh by affidavit. I consider that course is appropriate and may reduce the amount of cross-examination required or perhaps alleviate the need for cross-examination altogether. Therefore, I grant leave for the filing of that evidence.

52    I will also grant the Commissioner an extension of time until 24 September 2026 for the filing of his submissions in order that those submissions may address the amendments to the applicants’ originating application and the evidence in chief to be led from Mr Singh.

53    As each side has had a measure of success, I consider the appropriate order is that each party bear its own costs of the interlocutory application.

Associate:

Dated:    29 September 2026