FEDERAL COURT OF AUSTRALIA Deputy Commissioner of Taxation v Widdup [2022] FCA 1403 File number(s): NSD 466 of 2022 Judgment of: WIGNEY J Date of judgment: 16 November 2022 Date of publication of reasons: 23 November 2022 Catchwords: PRACTICE AND PROCEDURE – respondents' interlocutory application for stay of operation of notices issued under s 353-10 of sch 1 of the Taxation Administration Act 1953 (Cth) – relevant principles regarding validity of notices considered – where notices issued in good faith and not for an improper purpose – where operation of notices not overly impractical or unreasonable – notices valid and within scope of Commissioner's power – whether application urgent – where balance of convenience favours Commissioner – application dismissed Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 13, 15, 16 A New Tax System (Tax Administration) Act 1999 (Cth) Federal Court of Australia Act 1976 (Cth) s 23 Income Tax Assessment Act 1936 (Cth) s 264 (repealed) Judiciary Act 1903 (Cth) s 39B Tax Administration Act 1953 (Cth) sch 1 s 353-10 Treasury Legislation Amendment (Repeal Day) Act 2015 (Cth) Cases cited: Australia and New Zealand Banking Group Ltd v Konza (2012) 206 FCR 450; [2012] FCAFC 127 Binetter v Deputy Commissioner of Taxation [2012] FCA 377 Bromley London Borough Council v Greater London Council [1983] 1 AC 768 Clarke v Deputy Commissioner of Taxation (Qld) (1989) 20 ATR 701 CUB Australia Holding Pty Ltd v Commissioner of Taxation (2021) 385 ALR 731; [2021] FCA 43 Daihatsu Australia Pty Ltd v Commissioner of Taxation (2001) 184 ALR 576; [2001] FCA 588 Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited (1979) 143 CLR 499 Federal Commissioner of Taxation v Futuris (2008) 237 CLR 146; [2008] HCA 32 Fieldhouse v Deputy Commissioner of Taxation (1989) 25 FCR 187 Ganke v Deputy Commissioner of Taxation (1975) 25 FLR 98 Hart v Deputy Commissioner of Taxation (2005) 148 FCR 198; [2005] FCA 1748 Kordan Pty Ltd v Federal Commissioner of Taxation [2000] FCA 1807 May v Deputy Commissioner of Taxation (1998) 40 ATR 131 McCormack v Deputy Commissioner of Taxation Large Business and International (2001) 114 FCR 574; [2001] FCA 1700 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Nelson v Commissioner of Taxation [2017] FCA 819 Wouters v Deputy Commissioner of Taxation (NSW) (1988) 20 FCR 342 Division: General Division Registry: New South Wales National Practice Area: Taxation Number of paragraphs: 53 Date of hearing: 16 November 2022 Counsel for the applicant: Mr C Bevan Solicitor for the applicant: Dwyer Lawyers Counsel for the respondents: Ms E Bishop SC with Mr T Russel Solicitor for the respondents: HWL Ebsworth Lawyers ORDERS NSD 466 of 2022 BETWEEN: DEPUTY COMMISSIONER OF TAXATION Applicant AND: JULIAN JAMES WIDDUP First Respondent CECILIA ANNE WIDDUP Second Respondent order made by: WIGNEY J DATE OF ORDER: 16 November 2022 THE COURT ORDERS THAT: 1. On or before 23 November 2022, the applicant file and serve any further evidence it relies on for the purpose of the originating application. 2. On or before 9 December 2022, the applicant file and serve: (a) a defence to the notice of cross-claim; (b) any evidence in response to the notice of cross-claim. 3. On or before 23 December 2022, the respondents file and serve: (a) a reply to the applicant's defence; (b) any evidence in reply to the evidence filed in accordance with order 1. 4. No evidence, including affidavit evidence, for the purpose of the final hearing be filed or served by a party after 23 December 2022 without leave of the Court. 5. The matter be listed for case management hearing on 7 February 2023. 6. The interlocutory application filed by the respondents on 14 November 2022 be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from transcript) WIGNEY J: 1 Mr Julian Widdup and Mrs Cecilia Widdup are embroiled in a dispute with the Deputy Commissioner of Taxation in respect of their liability for family trust distribution tax and income tax for the income year ended 30 June 2018. The Deputy Commissioner commenced proceedings in June 2022 to recover the tax liability of Mr and Mrs Widdup. Mr and Mrs Widdup filed a cross-claim in July 2022 in which they claim that the notices issued by the Deputy Commissioner in respect of their liability for family trust distribution tax are invalid. The principal proceeding is at a relatively early stage of preparation. It is unlikely to be heard until the first half of next year. 2 The controversy the subject of this judgment does not directly concern or rise out of the principal proceeding. Rather, it concerns the validity of three notices that the Deputy Commissioner issued to Mr and Mrs Widdup pursuant to s 353-10 of sch 1 to the Taxation Administration Act 1953 (Cth) (TAA 1953). Two of the notices, both dated 17 October 2022, require Mr and Mrs Widdup to attend and give evidence before officers of the Australian Taxation Office on 25 and 24 November 2022 respectively. A third notice, dated 21 October 2022, requires Mr Widdup to provide specified information and documents to the Australian Taxation Office by 18 November 2022. 3 Mr and Mrs Widdup claim that the notices are invalid. On 8 November 2022, they and two companies filed a second cross-claim against the Deputy Commissioner in which they claim, among other things, that the notices that have been served on them are invalid and should be quashed. Of more immediate relevance is that, on 14 November 2022, Mr and Mrs Widdup filed an interlocutory application in which they claim that the notices should be stayed and that the Deputy Commissioner be restrained from taking any action to enforce them. This judgment addresses and determines that interlocutory application that has been filed by Mr and Mrs Widdup. The interlocutory application was listed for hearing before me on less than a day's notice. 4 The interlocutory application required to be heard and determined at very short notice arose because Mr Widdup was required to comply with the notice – the one which required him to provide information and produce documents – by 18 November 2022, which is in two days' time. More will be said about the delay in seeking the interlocutory relief later. It suffices to note at this stage that these reasons should be read in light of the fact that the interlocutory application had to be heard and determined in a very short space of time. RELEVANT STATUTORY PROVISIONS AND PRINCIPLES 5 Section 353-10 of sch 1 of the TAA 1953 (hereafter, s 353-10) provides as follows: 353‑10 Commissioner's power (1) The Commissioner may by notice in writing require you to do all or any of the following: (a) to give the Commissioner any information that the Commissioner requires for the purpose of the administration or operation of a *taxation law; (b) to attend and give evidence before the Commissioner, or an individual authorised by the Commissioner, for the purpose of the administration or operation of a taxation law; (c) to produce to the Commissioner any documents in your custody or under your control for the purpose of the administration or operation of a taxation law. Note: Failing to comply with a requirement can be an offence under section 8C or 8D. (2) The Commissioner may require the information or evidence: (a) to be given on oath or affirmation; and (b) to be given orally or in writing. For that purpose, the Commissioner or the officer may administer an oath or affirmation. (3) The regulations may prescribe scales of expenses to be allowed to entities required to attend before the Commissioner or the officer. 6 Section 353-10 is a latter-day version of the former s 264 of the Income Tax Assessment Act 1936 (Cth) (hereafter, s 264), though curiously the two provisions co-existed for a period of time. Section 353-10 was inserted into the TAA 1953 by pt 5-1 sch 2 of A New Tax System (Tax Administration) Act 1999 (Cth). Section 264 was repealed by cl 26 div 2 pt 1 sch 2 of the Treasury Legislation Amendment (Repeal Day) Act 2015 (Cth). Judicial decisions in respect of both s 264 and s 353-10 have established the following relevant principles in respect of the scope of the Commissioner's power to obtain information and evidence by means of notices issued under those provisions. 7 The power to issue a notice under s 353-10 is largely unconstrained: see Binetter v Deputy Commissioner of Taxation [2012] FCA 377 at [19] (Rares J). The only express requirement or constraint in sub-s (1) is that the power must be exercised for the "purpose of the administration or operation of a taxation law". 8 Like all such statutory powers, the power to issue a notice must be exercised in good faith: see Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited (1979) 143 CLR 499 at 544 (Murphy J) (FCT v ANZ). 9 Proof of bad faith generally requires proof of extreme circumstances, such as "dishonesty", "improper or ulterior motive" or "deliberate impropriety", and will generally only be made out in rare and extreme cases: see Daihatsu Australia Pty Ltd v Commissioner of Taxation (2001) 184 ALR 576; [2001] FCA 588 at [36]-[38], [48]; Federal Commissioner of Taxation v Futuris (2008) 237 CLR 146; [2008] HCA 32 at [55]; Kordan Pty Ltd v Federal Commissioner of Taxation [2000] FCA 1807 at [4]. 10 The Commissioner is entitled to "make a 'roving inquiry' into the income or assessment of a particular taxpayer": see the FCT v ANZ at 524 (Gibbs ACJ). The Commissioner "may 'fish' in a 'pool' that contains (or might contain) persons who are subject to an Australian tax liability": see Australia and New Zealand Banking Group Ltd v Konza (2012) 206 FCR 450; [2012] FCAFC 127 at [40]. FCT v ANZ and Konza both concerned s 264, though the principles identified in both decisions are equally applicable to s 353-10, despite the latter provision not being restricted to evidence concerning a person's income or assessment: CUB Australia Holding Pty Ltd v Commissioner of Taxation (2021) 385 ALR 731; [2021] FCA 43 at [70], [73] and [75]. 11 A notice under s 353-10 need not identify the person or persons in connection with whose income or assessment the request for information, evidence or documents has been made: see Konza at [39]; Binetter at [21]-[24]. 12 It is not necessary that the Commissioner know in advance whether the information or documents actually exist, or that the recipient of the notice is actually able to provide the information or produce the documents: see Konza at [39], citing McCormack v Deputy Commissioner of Taxation Large Business and International (2001) 114 FCR 574; [2001] FCA 1700 at [70] . 13 The time allowed to comply with a notice must be reasonable: see Ganke v Deputy Commissioner of Taxation (1975) 25 FLR 98 at 105; Hart v Deputy Commissioner of Taxation (2005) 148 FCR 198; [2005] FCA 1748 at [22]-[23] (Greenwood J); Clarke v Deputy Commissioner of Taxation (Qld) (1989) 20 ATR 701 at 709 (Spender J). An unreasonable time period is one which "looked at objectively" is "so devoid of any plausible justification, that no reasonable body of persons could have reached [it]": see Wouters v Deputy Commissioner of Taxation (NSW) (1988) 20 FCR 342 at 352, citing Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at 821. 14 A notice which requires the provision of information must contain enough detail to allow a reasonable person to identify and furnish the information in question: see Konza at [39]-[40], [46]; Binetter at [21]. 15 Likewise, a notice requiring the production of documents must state with reasonable clarity the documents that must be produced: see FCT v ANZ at 525; Clarke at 707. That said, notices should not be read "carpingly", hypercritically or with a determination to detect possible error: see May v Deputy Commissioner of Taxation (1998) 40 ATR 131 at 141 (affirmed on appeal); Fieldhouse v Deputy Commissioner of Taxation (1989) 25 FCR 187 at 208 (Hill J). THE THREE NOTICES 16 The notices to Mr and Mrs Widdup requiring them to give evidence were in effectively identical terms. The body of the notice addressed to Mr Widdup dated 17 October 2022 read as follows: Under section 353-10 of Schedule 1 to the Taxation Administration Act 1953, I require you to attend and give evidence: 1. for the purpose of the administration or operation of a taxation law, 2. before any or all of the following officers, Seetha Commuri Ruby Chiu Amaan Sonde Jane Nichols William Vuong whom I authorise for the purpose, 3. at 21 Genge Street Canberra ACT 2601, 4. on 25 November 2022 at 9.30 am and until you are excused from further attending. You may be required to give evidence on oath or affirmation. The officer who administers the oath or affirmation is authorised by me to do so. The powers of the Commissioner of Taxation under section 353-10 of Schedule 1 to the Taxation Administration Act 1953 have been delegated to me as Deputy Commissioner of Taxation under section 8 of the Taxation Administration Act 1953. 17 The body of the notice sent to Mrs Widdup on the same date was in identical terms except that the date at paragraph 4 required her to attend on 24 November 2022. 18 Given the grounds of Mr and Mrs Widdup's challenge to the notices, it is relevant to note that the letter under cover of which the notices were sent included the following statement: You may choose to have an advisor with you at the interview. However, Dr Terrence Dwyer and any past or present employees of his practice are specifically excluded from attending the interview as an adviser. 19 The notice addressed to Mr Widdup dated 21 October 2022 required him to give the information specified in Schedule A and produce the documents specified in Schedule B no later than 18 November 2022. Schedules A and B were in the following terms: Schedule A 1) List of all Widdup Family's worldwide assets, specifying the location and value of each (excluding personal effects). 2) List of all parties practising or purporting to practise, including but not limited to, as a legal practitioner and as a tax or accounting practitioner from whom advice has been sought since 1 July 2008 where that advice relates to either: a) a member of the Widdup Family; or b) an entity of the Widdup Group. 3) List of all FPL Partnership's worldwide assets, specifying the location and value of each. Schedule B Julian Widdup 4) Academic transcript in respect of all tertiary courses studied at any time (with grades awarded redacted). 5) All documents brought into existence in connection with your departure, termination or retirement from Palisade Investments Partners Limited ("PIPL"), whether as an employee, director, contractor or in any other capacity. 6) In respect of the income tax returns for the 2009 to 2021 income years, original paper tax returns, schedules thereto and documents that support calculation of the tax liability. Cecilia Widdup 7) In respect of the income tax returns for the 2009 to 2021 income years, original paper tax returns, schedules thereto and documents that support calculation of the tax liability . Fidelity Holdings Trust 8) All documents for the 2009 to 2018 income years required to be maintained under cl 11(a) of the FHT Trust Deed. 9) In respect of the income tax returns for the 2009 to 2019 income years, original paper tax returns, schedules thereto and documents that support calculation of the tax liability. JCW Strategies Pty Limited 10) In respect of the 2015 to 2021 income years, original income tax returns, schedules thereto and documents that support the calculation of the tax. FPL Strategies Pty Limited 11) In respect of the 2019 to 2021 income years, original income tax returns, schedules thereto and documents that support the calculation of the tax. FPL Partnership 12) All documents brought into existence, including but not limited to, in respect of the information required by cll 23-25 of the FPL Partnership Deed. 13) In respect of the 2018 to 2021 income years, original income tax returns, schedules thereto and documents that support the calculation of the tax. FPLJCW Investment Fund LLC 14) The limited liability company agreement (and amendments thereto) between members. 20 Schedules A and B were accompanied by a table of defined terms and expressions. It is unnecessary to include any detail about those definitions. 21 Mr and Mrs Widdup requested that the Deputy Commissioner give reasons for the decision to issue the notices pursuant to s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). 22 Reasons were in due course provided to Mr and Mrs Widdup in three letters dated 14 November 2022. The letters provided separate reasons in respect of each of the notices, and those reasons were in essentially the same terms. It is convenient to set out the reasons relating to the notice to Mr Widdup dated 17 October 2022 in full: Reasons for Decision 24. Pursuant to section 353-10 of Schedule 1 to the TAA, I made the decision for Ruby Chiu to issue the Relevant Notice which requires Mr Widdup to attend and give evidence before the Commissioner on 25 November 2022 at 9:30 am until excused from further attending, such notice being enclosed with the letter from the Commissioner dated 17 October 2022. I reached this decision because: (i) The Audit and Review may produce information that is relevant to the Commissioner identifying whether it is appropriate to raise assessments against other taxpayers for the 2018 income year and/or against Mr Widdup and his associated entities for income years other than 2018. (ii) Mr Widdup and the entities linked with him may have engaged in conduct amounting to tax avoidance. (iii) The purpose of interviewing Mr Widdup is not to review the liabilities already raised but to investigate other aspects of the Audit and Review. (iv) Mr Widdup may have relevant information about his own tax affairs and the tax affairs of related entities the subject of the Audit and Review – being, information that is relevant to the Audit and Review. (v) Further, having regard to ATO publication Our approach to information gathering, I considered it appropriate to issue the Relevant Notice because I consider: (a) the additional risks to involve international issues and complex structures; (b) the Audit involves high-risk issues relating to contrived arrangements which carry potential tax avoidance risks; and (c) the resources of the ATO will be deployed efficiently when gathering information to establish all material facts expeditiously. (vi) The evidence sought from Mr Widdup pursuant to the Relevant Notice is relevant to the proper discharge by the Commissioner of his duty to administer the taxation laws. (vii) The evidence sought from Mr Widdup pursuant to the Relevant Notice is required by the Commissioner for the purpose of the administration of taxation law, including, but not limited to, the TAA, the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth). GROUNDS OF CHALLENGE TO THE NOTICE 23 Mr and Mrs Widdup's application for a stay of the notice was said to be made pursuant to s 16 of the ADJR Act and s 39B of the Judiciary Act 1903 (Cth). It would appear, however, that the interlocutory relief is properly sought under s 15 of the ADJR Act and s 23 of the Federal Court of Australia Act 1976 (Cth). Either way, the claim for interlocutory relief in the nature of a stay of the notices required Mr and Mrs Widdup to establish that they had a prima facie case that the notices were invalid and that the balance of convenience favoured the grant of the interlocutory relief sought. 24 Mr and Mrs Widdup identified five grounds or five reasons why the notices were said to be invalid. 25 First, the notices required Mr and Mrs Widdup to attend interviews "next week" in respect of taxpayers who were not the subject of the existing proceedings. This may be taken to be a complaint that the notices were oppressive and that the time provided for compliance was inadequate. 26 Second, the notices required the provision of information, the production of documents and the attendance of interviews "contemporaneously with their requirement to meet this Court's timetable" in the principal proceeding. This would again appear to amount to a complaint that the notice was oppressive and that insufficient time for compliance had been given in the circumstances. 27 Third, the notices required Mr and Mrs Widdup to attend examinations on oath in Canberra next week subject to a condition the practical effect of which required them to obtain new legal representation. This was a complaint about the fact that the letters which accompanied the notices advised that Mr and Mrs Widdup's solicitor, Dr Dwyer would not be permitted to attend the interviews with Mr and Mrs Widdup. 28 Fourth, the notices were said not to have been issued in good faith. The basis of that allegation appeared to be that the notices required responses in November 2022, whereas other notices which had been issued to Mr and Mrs Widdup did not require any response before 31 January 2023. The other notices, which were not the subject of any challenge by Mr and Mrs Widdup, were also limited to the income year ended June 2018. 29 Fifth, there was said to be no proper or reasonable basis for any urgency such as to require Mr Widdup to furnish information and documents to the Commissioner by 18 November 2022 and to require Mr and Mrs Widdup attend to give evidence on 25 and 24 November 2022 respectively. 30 Mr and Mrs Widdup relied on affidavit evidence from their solicitor, Dr Dwyer, and affidavit evidence from Mr Widdup himself. 31 Mr Widdup's evidence, in short summary, was that it was not "practicable or financially feasible" for him and his wife to obtain alternative legal representation. He also claimed that the notice which required him to provide information and produce documents was "extremely broad and involves an enormous quantity of documents" and that it was "practically impossible" for him to comply with that request. He pointed out, in that context, that he and his wife were defending the principal proceeding at the suit of the Deputy Commissioner and that the fact that he and his wife were to be interviewed pursuant to the notices put them at a "material disadvantage" as witnesses in the principal proceeding. Mr Widdup also complained that the notice requirements will materially impinge in his and his wife's ability to provide instructions in the principal proceeding. It is unnecessary to summarise Dr Dwyer's evidence, the admissible parts of which mostly involved the production of uncontentious documentary evidence. 32 The Deputy Commissioner relied on information and belief evidence from her solicitor. That evidence essentially sought to explain why the Deputy Commissioner had required compliance with the notices by the relevant dates in November 2022. The explanation, in summary, was that, absent fraud or evasion, the "period of review for the ATO to review the tax affairs of Mr Widdup and Mrs Widdup for the 2018 income year is due to expire", in Mrs Widdup's case, as early as 17 December 2022. It was emphasised, however, that the notices were not issued for the purposes of reviewing the alleged liabilities which were the subject of the principal proceeding. NO PRIMA FACIE CASE 33 Mr and Mrs Widdup have not made out a prima facie case that the notices are invalid. 34 There is no evidence capable of supporting any inference or finding that the notices were issued for an improper purpose. Each notice states on its face that the information, documents or evidence, as the case may be, was sought for the purpose of the administration or operation of a taxation law. There is no evidence to suggest that the notices were issued, or the information was required, for any other purpose. There is no evidence capable of supporting any inference or finding that the notices were not issued in good faith. 35 Mr and Mrs Widdup's contention that the notices were issued in bad faith appeared to be based on the fact that they were required to respond or attend on 18, 24 and 25 November 2022, rather than at some later point in time. There is no merit whatsoever in that contention, particularly given that, as will be explained later, the timing of the notices is not unreasonable in all the circumstances. 36 There are no defects or deficiencies on the face of the notices. As discussed earlier, the notices to give evidence were not required to provide any further detail as to the nature of the evidence that Mr and Mrs Widdup may be required to give. Nor was it necessary for the notices to identify the taxpayers in respect of whom the evidence was being sought. 37 As for the notice to give information and produce documents, the information and documents were described with sufficient clarity and particularity in Schedules A and B to the notice. While the requirement to provide the specified information and documents may perhaps be considered to be somewhat onerous, that alone provides no basis to invalidate the notice. Mr Widdup's claim that it is practically impossible for him to comply with this notice lacked credibility and cannot be accepted. 38 Mr and Mrs Widdup's main complaints appeared to revolve around the timing of the notices. In particular, the timing was said to be unreasonable because there was no urgency, and compliance with the notice was required contemporaneously with compliance with the Court-ordered timetable in the principal proceeding. 39 There is no merit in the contention that the times for compliance with the notices were unreasonable in any respect. Two of the notices were issued on 17 October 2022 and the third was issued on 21 October 2022. Mr Widdup was effectively given one month to provide the information and produce the documents identified in the third notice. That is not, in all the circumstances, an unreasonable period for compliance. It is essentially immaterial that Mr Widdup is a party to the principal proceeding. The timetable for the filing of evidence by Mr and Mrs Widdup in that proceeding is yet to be finalised. 40 It is equally immaterial that there may be no apparent urgency. That said, there is an element of urgency. The urgency arises by virtue of the fact that the review period in respect of Mrs Widdup's tax liabilities for the 2018 tax year will end shortly. That at least suggests that there is a reasonable basis for requiring the expeditious provision of information and documents that might bear on that review. 41 There is no basis whatsoever for the suggestion that it is somehow unreasonable or oppressive to require Mr and Mrs Widdup to attend and give evidence for one day each, on 25 and 24 November 2022 respectively. Mr and Mrs Widdup each had almost five weeks to prepare to give that evidence. It is again essentially irrelevant that Mr and Mrs Widdup are also parties to the principal proceeding. That does not make the requirement to attend and give evidence unreasonable or oppressive in any material way. 42 The final issue that needs to be addressed is the Deputy Commissioner's apparent intention to prevent Mr and Mrs Widdup's solicitor, Dr Dwyer, from attending the interviews to be conducted with them. Mr and Mrs Widdup contended that the Deputy Commissioner did not have the power to exclude Dr Dwyer from their interview, and that it was, in any event, unreasonable for him to be so excluded. 43 It may be accepted that s 353-10 does not expressly empower the Deputy Commissioner to exclude someone from accompanying a person who is required by notice to attend and give evidence. That said, it must equally be accepted that the Deputy Commissioner has an implied power under s 353-10 to determine who can and who cannot be permitted to attend when a person is giving evidence pursuant to a notice. It could not, for example, be doubted that the Deputy Commissioner can determine that the evidence be given in private and that members of the general public be excluded. Counsel for Mr and Mrs Widdup ultimately accepted the existence of such an implied power. 44 It is now well established that statutory powers are almost invariably conferred subject to the implied limitation that they be exercised reasonably: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. A statutory power cannot be exercised arbitrarily, capriciously, in bad faith or for an improper purpose. The question then is whether, in this case, the Deputy Commissioner's decision to not permit Dr Dwyer to accompany Mr and Mrs Widdup when they give evidence was or is arbitrary, capricious or manifests bad faith or an improper purpose. 45 As noted earlier, the reason given for the exclusion of Dr Dwyer contained in the letters which enclosed the statement of reasons under s 13 of the ADJR Act in relation to the two notices to attend to give evidence was that the Deputy Commissioner had "formed the view that [Dr Dwyer's] attendance at the proposed interviews could prejudice the Commissioner's investigation because he appears to have participated in the design and/or structuring of the tax affairs of you and/or your associated entities". 46 A further hint as to why it was decided to exclude Dr Dwyer is given in paragraphs 9 to 11 and 23(i) or 22(i) of the statement of reasons (in the two notices to attend and give evidence). Those paragraphs explain why the review of the tax affairs of the Fidelity Holdings Trust was conducted on a covert basis after Dr Dwyer provided certain information on behalf of Mr Widdup in response to an information request by the Commissioner. Senior counsel for the Deputy Commissioner submitted that it is readily apparent from the relevant letters and statements of reasons that the main reason for excluding Dr Dwyer from the interviews is that Dr Dwyer had been involved in the design and structure of Mr and Mrs Widdup's tax affairs. He may therefore at some point in the future be required to give evidence in relation to those affairs. It was submitted that, in those circumstances, it was reasonable to exclude Dr Dwyer from attending Mr and Mrs Widdup's interviews so as to avoid any potential conflict that may arise. 47 While the reasons given by or on behalf of the Deputy Commissioner for excluding Dr Dwyer from attending the interviews may not be particularly compelling, I am nonetheless not persuaded that the decision to exclude Dr Dwyer was legally unreasonable. That is because I am not persuaded that the decision to exclude Dr Dwyer was arbitrary, capricious, lacking bona fides, illogical or made for an improper purpose. 48 It should also perhaps be noted in this context that the decision to exclude Dr Dwyer from the interviews was not, strictly speaking, a condition or requirement specified in the relevant notices. It was referred to only in the covering letters. It is therefore somewhat doubtful that the decision to exclude Dr Dwyer, even if found to be legally unreasonable, would necessarily lead to the invalidity of the notices themselves. The interlocutory relief sought by Mr and Mrs Widdup related only to the notices. It is, however, unnecessary to reach a concluded view in respect of this issue given the finding that the decision was not legally unreasonable in any event. BALANCE OF CONVENIENCE 49 Given that Mr and Mrs Widdup have failed to establish that they have a prima facie case that the notices are invalid, it is strictly unnecessary to address whether the balance of convenience favours the grant of interlocutory relief. It should nevertheless perhaps be noted that the balance of convenience does not necessarily weigh in favour of granting the interlocutory relief sought by Mr and Mrs Widdup. That is so for at least two reasons. 50 First, it may be accepted that if the interlocutory relief was to be refused, it would effectively render Mr and Mrs Widdup's second cross-claim moot. Mr and Mrs Widdup would, in those circumstances, suffer some degree of detriment or prejudice. The Deputy Commissioner, however, would also suffer some detriment or prejudice if the interlocutory relief was granted and yet Mr and Mrs Widdup's application for final relief in respect of the notices ultimately failed. That is because by that time the review period in respect of Mr and Mrs Widdup's tax liability for the 2018 years would have expired. The utility of the notices would therefore be diminished to that extent. 51 Second and perhaps more significantly, Mr and Mrs Widdup's delay in seeking the interlocutory relief is a relevant consideration, either in relation to the balance of convenience or in relation to the exercise of the discretion to grant interlocutory relief: see Nelson v Commissioner of Taxation [2017] FCA 819 at [52]-[53]. 52 Two of the notices were served as long ago as 17 October 2022. While it may be accepted that Mr and Mrs Widdup's solicitor communicated with the Deputy Commissioner's solicitors within days of the receipt of the notices, the second cross-claim was not filed until 8 November 2022. More importantly, it was not until 14 November 2022 that Mr and Mrs Widdup filed their interlocutory application. That necessitated an urgent hearing and the urgent determination of the interlocutory application. The delay in seeking the interlocutory relief would, in all the circumstances, have provided a compelling discretionary reason for declining the relief sought. As I have already noted, however, it is unnecessary to reach a final view concerning the balance of convenience or the refusal of relief on discretionary grounds. That is because Mr and Mrs Widdup have not, in any event, established a prima facie case that the notices in question are invalid. DISPOSITION 53 The interlocutory application filed by Mr and Mrs Widdup on 14 November 2022 is dismissed with costs. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney . Associate: Dated: 23 November 2022