Background
Kerrigan Law Pty Ltd and three other applicants brought judicial review proceedings concerning the Commissioner of Taxation’s exercise of compulsory information-gathering powers. They challenged a decision made under s 353-15 of the Taxation Administration Act 1953 (Cth) to access premises associated with Sam Cassaniti and a separate decision under s 353-10 to require Digital Trace Australia Pty Ltd and its principal to provide information.
The Access Decision was made by ATO officer Jarred Needham. A separate agreement by Assistant Commissioner Alister Boyes authorised the access to be conducted without notice; that without-notice authorisation was not one of the two challenged decisions. Shortly before the final hearing, the applicants sought leave to add grounds attacking the statutory validity of the Access Decision and the information notice. They also sought permission to make late evidentiary requests requiring Mr Needham and ATO officer Shivam Singh to testify about prior representations, including notes concerning whether Thi Linh Trinh consented to the imaging or copying of electronic material during the access visit.
The Court’s Holding
Justice Moore granted leave to amend the originating application. Although the amendments were late, they arose from the same factual and legal setting, required no additional evidence, and caused no identified prejudice that warranted refusing leave. The Commissioner’s objections principally concerned the merits of the new grounds, which the Court held could be addressed more efficiently at the final hearing.
The Court extended by one day the time for making the evidentiary requests but declined to require the Commissioner to call Mr Needham. Oral evidence from him had not been shown to be relevantly useful, and production of the draft submission and referenced tables adequately protected the applicants’ position. The Court did require the Commissioner to call Mr Singh, initially only to address whether timestamps in his notes were written contemporaneously with the notes themselves. Apparent differences in ink and stroke weight, together with the notes’ potential importance to the dispute over Ms Trinh’s consent, justified that limited examination.
The Commissioner was permitted to file evidence from Mr Singh and was ordered to produce the draft submission, if it existed, and two tables referenced in the relevant written submission. The balance of the interlocutory application was dismissed, and each party was ordered to bear its own costs.
Key Takeaways
- A late amendment may be allowed where it arises from the existing factual substratum, requires no further evidence, and can be addressed without material disruption to the final hearing.
- A request to call a decision-maker for cross-examination requires a demonstrated basis for believing that the proposed oral evidence will materially assist the issues in judicial review.
- A witness may be required under s 169 of the Evidence Act 1995 (Cth) where contemporaneous notes are important to a factual dispute and there is a genuine question about the accuracy or authenticity of their timestamps.
Why It Matters
The ruling illustrates the Federal Court’s pragmatic approach to interlocutory case management in judicial review proceedings: arguable amendments tied to existing issues may be left for determination at trial, while proposed witness examination will be confined to evidence that is genuinely probative.
It also highlights the significance of how contemporaneous records are created and preserved. Where timing entries may affect the resolution of a disputed account, visible inconsistencies in the document can justify limited testimony from its author.