FEDERAL COURT OF AUSTRALIA Melbourne Corporation of Australia Pty Ltd v Commissioner of Taxation [2020] FCA 641 File numbers: QUD 513 of 2018 QUD 607 of 2018 QUD 399 of 2019 Judge: LOGAN J Date of judgment: 5 March 2020 Catchwords: PRACTICE AND PROCEDURE – where applicants are on notice from the respondent that a federal prisoner incarcerated in one State (New South Wales) is required for cross-examination during a trial listed to be heard in another State (Queensland) – whether the Court has power to make an order for the federal prisoner's production before the Court for the purposes of giving evidence – whether Court should sit in New South Wales for that part of trial entailing oral evidence of the prisoner Legislation: Constitution s 120 Crimes Act 1914 (Cth) s 19Af Federal Court of Australia Act 1976 (Cth) s 23 Service and Execution of Process Act 1992 (Cth) s 3 Crimes (Administration of Sentences) Act 1999 (NSW) Cases cited: Sage v ZZ (No 2) (2015) 234 FCR 251 Date of hearing: 5 March 2020 Registry: Queensland Division: General Division National Practice Area: Taxation Category: Catchwords Number of paragraphs: 8 Counsel for the Applicant: Mr J Hyde Page Counsel for the Respondent: Ms C T Ensor ORDERS QUD 513 of 2018 BETWEEN: MELBOURNE CORPORATION OF AUSTRALIA PTY LTD Applicant AND: COMMISSIONER OF TAXATION Respondent QUD 607 of 2018 BETWEEN: MELBOURNE INSURANCE CO PTY LTD Applicant AND: COMMISSIONER OF TAXATION Respondent QUD 399 of 2019 BETWEEN: PHOTO ADVERTISING (INTERNATIONAL) PTY LTD Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: LOGAN J DATE OF ORDER: 5 MARCH 2020 THE COURT ORDERS THAT: 1. Pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), and without derogating from such application and authority as may otherwise be conferred by the Crimes (Administration of Sentences) Act 1999 (NSW), the Commissioner of Corrective Services New South Wales (Commissioner), or the officer, however described, of the New South Wales prison, however described, in which Mr Vanda Gould, a federal prisoner, is held in lawful custody, have Mr Gould appear before the Federal Court of Australia in Queens Square, Sydney, New South Wales, during the hearing of this proceeding on Monday 20 April 2020 at 10.15am for the purpose of his giving evidence in the proceeding (and matters heard together with it) and thereafter from day to day at that place for that purpose, until the Court directs that his attendance for that purpose is no longer required. 2. During adjournments of the proceeding, Mr Gould is to be held in such place of detention as the Commissioner, or other officer having lawful custody of him, may direct. 3. For the purpose of hearing the oral evidence of Mr Gould, and other purposes relating to this taxation appeal, the proceeding be held at the Law Courts, Queens Square, Sydney, New South Wales for the week commencing Monday 20 April 2020 at 10.15am, but otherwise in Brisbane, Queensland. 4. Liberty to apply, including liberty to apply being reserved to the Commissioner. 5. Costs reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) LOGAN J: 1 The trial of taxation appeals brought by Melbourne Corporation of Australia Pty Ltd and other applicants is due to commence in Brisbane on 14 April 2020 for a period of three weeks. Since the trial dates were fixed there has been a development in relation to Mr Vanda Gould (Mr Gould). Mr Gould's evidence is a necessary part of the applicant's case in each of the taxation appeals listed for trial. The development is that Mr Gould has been convicted in the District Court of New South Wales after a trial in respect of a federal offence. He is presently being held in prison in New South Wales awaiting his sentencing in respect of that federal offence. 2 For their own reasons, and as they are entitled to do, the parties have chosen by their solicitors to retain, for the purposes of the hearing of the taxation appeals, counsel whose chambers are interstate. That particular phenomenon is not unique to the taxation appeals listed for hearing in April. It was a feature of the taxation appeal heard by me last year, with judgment being reserved until such time as judgment is delivered in the appeals fixed for hearing in April. That feature did not move the parties for an order that the earlier taxation appeal be heard interstate. Nor, given that, is it a particularly persuasive consideration at all in relation to a wholesale change of venue for the hearing of the present taxation appeals. 3 The development noted though does introduce a consideration of convenience in terms of the reception of oral evidence from Mr Gould. The applicants are on notice from the Commissioner, as respondent to the taxation appeals, that Mr Gould is required for cross-examination in respect of affidavit evidence-in-chief which he is to give in relation to those taxation appeals. So a question which emerges is where, most conveniently, the court should set to hear Mr Gould's oral evidence? 4 A necessary starting point in relation to the detention of federal prisoners is s 120 of the Constitution, which provides: Custody of offenders against laws of the Commonwealth Every State shall make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punishment of persons convicted of such offences, and the Parliament of the Commonwealth may make laws to give effect to this provision. 5 These days, provision by the Commonwealth Parliament for the sentencing and imprisonment of federal offenders is to be found in the Crimes Act 1914 (Cth) (Crimes Act). Section 19A of the Crimes Act provides: Detention of person in State or Territory prisons A federal offender who is ordered by a court or a prescribed authority to be detained in prison in a State or Territory, may be detained in any prison in that State or Territory and may be removed from one prison to another prison in that State or Territory as if the person were detained as a State offender or Territory offender. 6 Perhaps surprisingly, but as revealed by the research and related submissions of the parties in the present cases, the Crimes Act does not directly provide for the transfer interstate of federal offenders. Section 19A is confined in its application to removal from one prison to another prison in the state or territory in which the federal prisoner is housed. Neither, given the definition of "court" in s 3 of the Service and Execution of Process Act 1992 (Cth), does there appear to be specific authority in that act in relation to the production of a federal prisoner before this Court. Yet further, it does not appear that the Commonwealth Parliament, via one might have thought, the Crimes Act, picks up generally state regimes applicable to state prisoners and applies them mutatis mutandis to federal prisoners so far as interstate transfer is concerned. 7 However all this may be, the taxation appeals are within the court's jurisdiction to hear and determine. That being so, s 23 of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act) is applicable. That section provides: Making of orders and issue of writs The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate. This section is, in my view, an ample source of power for the Court to make an order for Mr Gould's production before the court for the purpose of giving evidence in the taxation appeals. It may be also that authority for his production, at least in Sydney, is to be found in the Crimes (Administration of Sentences) Act 1999 (NSW). It is not necessary, finally, to resolve that, given the ample conferral of power on the court by s 23 of the Federal Court of Australia Act. 8 It is not difficult to apprehend the custodial administration challenges, not to mention public expense, which might attend the imposition of a requirement on the Commissioner of Corrective Services, New South Wales, to produce Mr Gould in Brisbane, and keep him here from day to day until such time as his evidence was completed. That consideration makes it desirable, to say the least, that the Court sit in Sydney for the purpose of hearing his evidence. Further, it is for reasons of convenience to the parties and, for that matter, to the Court also desirable that the Court sit in Sydney for the balance of the week starting 20 April 2020. Save as aforesaid though, there is no good reason to sit other than in Brisbane. I shall therefore make orders which require the production of Mr Gould in Sydney on Monday, 20 April 2020 at 10.15am and ancillary orders relating thereto. The particular order which I have in mind making in relation to production is similar to that which commended itself to Rares J in Sage v ZZ (No 2) (2015) 234 FCR 251. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 13 May 2020