The conduct of the Australian Taxation Office in litigation

Here is an audio overview that features a deep-dive discussion between two people regarding the conduct of the ATO and its legal representatives (AGS and Clayton Utz) during litigation.

The discussion focuses on several key instances:
  • Omission of Evidence: The failure to include crucial documents, such as the Higham Minute of 29 July 1997, in sworn discovery lists despite specific court orders.
  • False Justifications for Delay: The AGS claiming a witness was on "sick leave" to explain a delay in providing a discovery list, while subsequent billing records do not reflect such an absence.
  • Billing Discrepancies: The inclusion of costs for a meeting between counsel and the applicant that the applicant's personal work diary shows could not have occurred, as he was on leave at the time.
  • Resiling from Undertakings: The AGS initially providing a written undertaking to substantiate their bills of costs using their files, only to later file submissions seeking to maintain legal professional privilege over those same documents.
Listen to the podcast "ATO Misconduct in Litigation"


Watch "The ATO Litigation Paper Trail" - and see how many times the Australian Taxation Office and its legal representatives slip up - and thumb their noses at the the legal system.


Folly drives over the 'model' litigant code. Then stops, and reverses over it to make sure its dead.
The Higham Minute of 29 July 1997 is a critical piece of evidence that the applicant, Colin Dunstan, alleges was repeatedly and improperly omitted or concealed during litigation by the Australian Taxation Office (ATO) and its legal representatives.

Content and Significance of the Minute

The document is a minute from the Second Respondent, John Higham, to the Third Respondent, John Growder, titled "Outcome Of Authorised Officer Process". Its primary significance lies in Higham's conclusion that he could not charge the applicant with misconduct under the Public Service Act 1922.

This decision was based on legal advice provided by Tony Burslem of the Australian Government Solicitor (AGS) in July 1997, who advised Higham that charging the applicant in connection with Growder’s expressed fears was not legally open to him.

Instances of Omission

The sources detail two major instances where this document was withheld:
  • Initial Discovery (September 1997): Following an order for discovery by Finn J on 19 August 1997 in proceeding ACD30 of 1997, the minute was omitted from John Growder’s sworn list of documents. Growder's list, unlike others filed at the same time, lacked the required court footer, which is consistent with a deliberate intention not to file a false sworn statement with the court.
  • The Besanko J Hearing (July 2007): The applicant alleges that legal representatives failed to disclose the minute to Besanko J even after legal professional privilege over related advice was purportedly waived on 2 July 2007. During a later cross-examination in 2013, the respondents' solicitor, Robert Cutler, admitted that they "did not disclose that document at that time" and claimed he "didn't turn [his] mind" to the question of whether the privilege had been waived by the tender of other legal advice.

The Higham Minute is addressed to two people, one of whom is John Growder. In 1997 a court order was made that John Growder and Geoff Seymour file and serve sworn lists of documents in the possession. The Higham Minute is not in the List of Documents the AGS prepared for John Growder. In addition to the AGS reason for delaying a List for John Growder's sworn list:

  1. The Higham Minute addressed to him is not in the List.
  2. The billing items show an extra meeting between the AGS and John Growder that was not required with Geoff Seymour to finalise his sworn list of documents.
  3. Federal Court rules require a jurat at the end of page one of all documents to be filed. The registry will not accept a document for filing if it is absent. It was present on the list the AGS created for Geoff Seymour. It is absent from the List the AGS created for John Growder. This suggests an intention to not comply with the order to file the list, and a motive being that it is known to intentionally have omitted a material document.

This motivation is further suggested by the AGS submission to the Federal Court in 2002 - denying the order to file the Sworn Lists was made and expressing the opinion that Geoff Seymour and John Growder could not defend claims against them if privileged documents were revealed to the applicant. The sworn lists prepared in 1997 did not claim any documents were privileged.

Detailed evidence regarding the conduct of the AGS and John Growder in relation to the 1997 discovery order".

The Discovery Order and the Omission of the Higham Minute

On 19 August 1997, Finn J ordered that the Third, Fourth (John Growder), and Fifth (Geoffrey Seymour) Respondents file and serve a list of documents by 19 September 1997 Despite this order, the Higham Minute of 29 July 1997, which was addressed to Growder and concluded he could not legally charge you with misconduct, was omitted from his sworn list of documents.

Discrepancies in Reasons for Delay and Billing Records

The AGS provided a written explanation for the delay in serving Growder's list, claiming he had been on "sick leave for some time". However, there are several contradictions in the billing and court records:
  • Billing Evidence: The Bills of Costs filed in 2001 do not reflect any delay caused by sick leave.
  • Extra Meetings: While the lists for Growder and Seymour are largely mirror images, the billing items for 25 September 1997 show two additional items for John Growder (items 69 and 70) to amend and consider an amended list of documents. These items are absent from the billing for Geoff Seymour, whose list was finalized a day earlier.

The Missing Jurat and Intentional Non-Compliance

A significant procedural discrepancy: Federal Court rules require a jurat (court footer) at the end of the first page for any document that is to be filed.
  • Geoffrey Seymour's list included this required footer.
  • John Growder's list lacked the footer. This omission is consistent with an intention not to file the list in court, thereby avoiding the filing of a false sworn statement that omitted a material document like the Higham Minute.

Motivation and Subsequent Denials

The motive for this conduct is further suggested by later AGS submissions and statements to the court:
  • Denial of the Order: In written submissions on 5 November 2002 and oral submissions on 4 August 2003, the AGS denied that the 19 August 1997 discovery order had ever been made.
  • Claims of Privilege: In 2002, Kim Bennett of the AGS asserted that the respondents could not defend claims against them if privileged documents were revealed.
  • Absence of Privilege in 1997: Crucially, the sworn lists prepared in 1997 did not claim privilege over any documents in the respondents' custody or control.

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