iscover Coloured pens, allegedly rushed consent: ATO record keeper ordered to appear in court
TaxQuestions of alleged coercion and inaccurate records have been raised during a Federal Court hearing against the Commissioner of Taxation.
A director’s release of documents to the Commissioner of Taxation also raised the question of consent at an interlocutory hearing on Thursday, 18 September 2026.
Justice Cameron Moore ordered a member of the ATO staff to appear for cross-examination to determine whether his record of events was contemporaneous and accurate.
During the hearing, it emerged that the applicant, Marginata Securities director Thi Linh Trinh, signed a consent form to release documents on 9 September. The court heard this consent form may have been signed under alleged coercion.
Justice Moore heard that Trinh was given the option to supply certain documents to the commissioner either through an “image option” or a “search option” and was given an opportunity to seek legal representation.
Justice Moore said that Trinh was told words to the effect of: “If you don’t consent to it being imaged, we will be here for days.”
She was also told words to the effect of: “You can get legal advice… would you like to give [your husband] a call now.”
Her husband and director of accounting firm Capital Financial Advisory, Sam Peter Cassaniti, was allegedly on his way to the premises at the time.
The applicants’ barrister, David McGovern SC, alleged that Trinh was rushed to sign the consent form before Cassaniti arrived.
The Commissioner of Taxation submitted the notes taken by the ATO employee at the time, which were time-stamped, allegedly provided a play-by-play record of events.
The barrister for the commissioner, Luke Livingston SC, stressed that Singh provided a “precise, comprehensive, and detailed” note of the events.
Despite this, Justice Moore said it was “not a very expansive note”.
According to the timestamps, Trinh provided consent within 12 minutes, and the employee merely noted that she was “happy” to sign the consent form.
Different coloured pens
McGovern submitted that in the notes, some further timestamps appeared to have been inserted with a different coloured pen, and questioned the contemporaneousness of the notes due to the use of different pens.
In response, Livingston called McGovern’s claim “tenuous”, asserting that the concept of reasonable doubt should apply to the contemporaneity of the notes.
“It may not be a different pen [colour]; it could be a different pressure,” Livingston said.
The judge found a substantial factual dispute over whether Trinh consented on the day of signing, and because the employee was the only one with a written record of events, the judge ordered that they be cross-examined so the court could determine the notes’ contemporaneity.
Justice Moore listed the next hearing for 30 September 2026, with the employee and five other witnesses set to appear.
The case citation: NSD2344/2025 - Kerrigan Law Pty Ltd (ACN 620 231 432) (Formerly Known as McEvoy Legal Pty Ltd) & Ors v Commissioner of Taxation & Anor
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