Akkari and Commissioner of Taxation

[2018] AATA 1260

Akkari and Commissioner of Taxation [2018] AATA 1260 (2 May 2018)

Division:TAXATION & COMMERCIAL DIVISION

File Number:           2017/6790

Re:Joumana Akkari

APPLICANT

AndCommissioner of Taxation

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment

Date:2 May 2018

Place:Sydney

Accordingly, pursuant to s. 42A(10) of the Act, the application will be reinstated. It will be listed for directions in due course.

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Deputy President B W Rayment

CATCHWORDS

PRACTICE AND PROCEDURE – reinstatement – original application withdrawn by applicant – application withdrawn by solicitor without consent – power to reinstate – application reinstated.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – ss 42A(8), 42A(9), 42A(10)

CASES

Goldie v Minister for Immigration & Multicultural Affairs [2002] FCAFC 367

REASONS FOR DECISION

Deputy President B W Rayment

2 May 2018

1. The solicitor for the applicant notified the Tribunal that the application was withdrawn on 13 April 2017. By administrative action, the Tribunal acted on the notification from the applicant’s solicitor. I am asked to reinstate the application in the circumstances set out below.

2. The evidence led on behalf of the applicant was to the effect that she gave no instructions for the application to be withdrawn. It appears that the solicitor who gave notice to the Tribunal that the application was withdrawn is no longer practising and I have not heard from him, nor from the accountants who introduced him to the applicant. Any agency of the accountant cannot have extended to giving instructions to the solicitor to withdraw the application unless the applicant had given those instructions to the accountant and I am satisfied that she did not do so.

3. I am satisfied that the applicant gave no instructions for the withdrawal of the application for review of the respondent’s decision. Application was made for an order under s. 42A(8) of the Administrative Appeals Tribunal Act1975 (Cth) (the Act). After argument, I invited submissions on s. 42A(10) of the Act from both parties.

4. It may well be that s. 42A(8) justifies the making of an order reinstating the application, but it is clear in the light of the decision of the Full Court of the Federal Court in Goldie v Minister for Immigration & Multicultural Affairs [2002] FCAFC 367 at [29] that the circumstances cause s. 42A(10) to be engaged and I prefer to act under that provision. This is a case in which the solicitor responsible for the purported withdrawal of the application for review of the reviewable decision acted without instructions and the application was dismissed in error.

5. Accordingly, pursuant to s. 42A(10) of the Act, the application will be reinstated. It will be listed for directions in due course.

I certify that the preceding 5 (five) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment

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Associate

Dated: 2 May 2018

Date of hearing:	4 April 2018
Solicitors for the Applicant:	S El-Hanania, Lawyer
Solicitors for the Respondent:	E Chiaw, Commissioner of Taxation