Is evidence by video link available to avoid arrest or departure prohibition orders?

Should a litigant who refuses to come to Australia to give evidence, fearing they will be arrested or prevented from leaving Australia if they do, be permitted to give evidence by video link? The Full Court of the Federal Court considered the public policy implications of that question in Seymour v Commissioner of Taxation [2016] FCAFC 18 . 

The taxpayers, Mr and Mrs Seymour were parties to Part IVC proceedings in the Administrative Appeals Tribunal (Tribunal). They were resident in Mauritius, having departed Australia shortly after the Commissioner began an audit of their tax affairs. They sought an order permitting them to give evidence by video link in their Tribunal proceeding.  The Tribunal had a broad discretionary power to allow a person to participate in the hearing of a proceeding by telephone or video link or other media: s 35A; but was required to ensure that every party had a reasonable opportunity to present their case: s 39(1).

In affidavits filed in the Tribunal, the Seymours said they were concerned they might be arrested or issued with a departure prohibition order (DPO) if they returned to Australia. They had sought an undertaking from the Commissioner that he would not take a range of actions, including arrest or DPO, if they returned to give evidence. The Commissioner would not give the requested undertaking. The Tribunal decided to permit the Seymours to give evidence by video link.

The discretion in courts and the Tribunal to allow evidence by video link is an open one, so courts avoid laying down rigid rules about how it is to be exercised. Nevertheless there is a series of cases emphasising the importance of allowing a party to cross examine a witness in a courtroom in the physical presence of a judge, particularly where a witness’ credit is in issue.

The primary judge found that the Tribunal was in error in permitting the Seymours to give evidence by video link.  The primary judge found the Tribunal had read too narrowly the applicants’ stated reasons for not wishing to come to Australia. The Tribunal had considered the Commissioner’s refusal to undertake not to issue a DPO to the applicants. The trial judge found the position in fact was that the Seymours would not come to Australia even if an assurance were given about DPOs. His Honour held that the Tribunal’s decision was affected by jurisdictional error for a public policy reason. It was an error for the Tribunal to rely upon as relevant, much less decisive, a party’s wish to ‘avoid any possibility of legitimate action by taxation, regulatory or prosecuting authorities in Australia’:  primary reasons at [99]. Further, the decision was affected by jurisdictional error because it would prevent the Commissioner from being able to cross examine effectively.

The Full Court split 2-1 on the appeal. Pagone J accepted that the applicants’ unwillingness to come to Australia for reasons of wanting to avoid the possibility of legislative action by taxation, regulatory or prosecuting authorities was a relevant matter for the Tribunal to take into account. Pagone J said that, although relevant, this was not a matter always to be taken into account in the applicants’ favour.

However, Pagone J preferred the position in Polanski  v Condé Nast Publications Ltd [2005] 1 All ER 945. In Polanski the plaintiff, a film director, had fled California following conviction for a criminal offence. While living in France, Mr Polanski sought to give evidence by video in defamation proceedings he had commenced in England. The House of Lords by majority found that he should be permitted to give evidence by video link, despite the fact that his reason was to avoid extradition to California. Lord Nicholls, speaking for the majority, found the general rule should be that a claimant’s unwillingness to come to the country to give evidence because he is a fugitive from justice can be a valid and sufficient reason for making an order for evidence to be received by video. Significantly, the discretion to allow evidence by video should not be exercised so as to operate effectively as a bar to a fugitive vindicating civil rights, where no such bar otherwise existed under the general law.

The majority of the Full Court (Siopis & Griffiths JJ) declined to follow the reasoning in Polanski. The observations which can be extracted from their (separate) judgments seem to be as follows:

1. Courts should not set general rules confining the exercise of the discretion to permit video evidence. Each case must be considered on its own particular facts. [69]
2. In this case, the Commissioner’s right to examine the applicants was profoundly affected by the fact that the applicants’ evidence would be given not in person but by video link from Mauritius. In particular, the ability to control a witness and to cross examine effectively on documents and on credit would be affected. [80]
3. It was permissible for the Tribunal to treat as a relevant matter the fact that a DPO might be issued to a party if they were required to attend to give evidence: [46]. However, the facts were that the applicants would have refused to come to Australia, whether or not they faced being served with a DPO: [53]-[54].
4. Public policy concerns of the kind explored by the primary judge (and in Polanski) were relevant and did not weigh in favour of leave to give evidence by video in this case. Griffiths J found the minority opinions in Polanski persuasive but it was unnecessary to decide whether the ‘general rule’ laid down in Polanski should be followed (see 1 above): [30], [72]. According to Siopis J, the Tribunal’s error might better have been characterised as a failure to have regard to the policy concerns evinced by the Taxation Administration Act 1953 (including the provision there made for the Commissioner to serve a DPO and the policy intent it evinced to secure payment of tax debts): [23].
5. There was no error in the primary judge’s finding that the decision to permit Mr and Mrs Seymour to give evidence by video link amounted to jurisdictional error because it denied the Commissioner procedural fairness and failed to give the Commissioner a reasonable opportunity to present his case as required by s 39 of the AAT Act: [79], [32].