Australian Gold Dealers Pty Ltd and Commissioner of Taxation (Practice and procedure)
[2025] ARTA 989
•10 July 2025
Australian Gold Dealers Pty Ltd and Commissioner of Taxation (Practice and procedure) [2025] ARTA 989 (10 July 2025)
Applicant/s: Australian Gold Dealers Pty Ltd
Respondent: Commissioner of Taxation
Tribunal Number: 2024/1440
Tribunal:General Member M Abood
Place:Sydney
Date:10 July 2025
Decision:The Interlocutory Application dated 24 June 2025 for further directions progressing the Application is dismissed.
…………SGD…………………..
General Member M Abood
Catchwords
PRACTICE AND PROCEDURE – application for further directions progressing the application – proceedings were dismissed under section 100 of the Administrative Review Tribunal Act 2024 for failure to comply with Tribunal directions – self-executing directions – whether lack of notice being provided for the purpose of s102(7) of the ART Act voids the effect of a self-executing dismissal direction.
Legislation
Administrative Appeals Tribunal Act 1975, s42A(5)
Administrative Review Tribunal Act 2024, ss 86, 100, 102,Cases
Assaf v Tax Practitioners Board [2024] ARTA 47
Berry v Commissioner of Taxation [2015] FCA 1244
Carey v Commissioner of Taxation (2014) 145 ALD 236
De Simone v Commissioner of Taxation [2017] AATA 1005
Haines v Commissioner of Taxation [2025] ARTA 461;
Singh v Minister for Immigration and Multicultural Affairs [2024] ARTA 242Statement of Reasons
At the conclusion of a Case Management Directions Hearing (CMDH) which had been listed before me on 9 July 2025 I gave a brief outline of my rationale for likely dismissing the Applicant’s (implicit) request that proceedings 2024/1440 Australian Gold Dealers Pty Ltd v Commissioner of Taxation, (the Application) be progressed and for clarification as to the status of those proceedings generally. These written reasons are intended to convey my decision which I foreshadowed at the conclusion of that interlocutory hearing.
The Application was listed before me on 27 February 2025 for a non-compliance directions hearing which had been listed:
·after a directed timetable made by Deputy President Lazanas had either not been complied with or was the subject of extension of time requests made by the Applicant[1]; and
·after the most recent extension granted by Deputy President Lazanas for the Applicant to lodge its material by a due date of 31 January 2025 had not been complied with.
[1] Directions had been initially made on 17 July 2024 but were extended on 15 November 2024 and then again on 10 January 2024)
At the conclusion of the non-compliance hearing during which there was a further request made by the Applicant’s solicitor for material to be lodged by 21 March 2025 I decided that rather than simply granting further time it was appropriate in the circumstances to make directions (relevantly) as follows:
1. Directions 1, 2 & 3 of the Directions made 17 July 2024 (as varied on 15 November 2024 and 10 January 2024) be further varied, as follows:
1.On or before 5pm, Friday, 28 March 2025 the Applicant is to lodge with the Tribunal and serve on the Respondent:
a. A Statement of Facts, Issues and Contentions; and
b. any material and evidence upon which they intend to rely.
2.On or before 5pm, Friday, 18 July 2025, the Respondent is to lodge with the Tribunal and serve on the Applicant:
a. A Statement of Facts, Issues and Contentions; and
b. any material and evidence upon which they intend to rely.
3.On or before 5pm, Friday, 15 August 2025, the Applicant is to lodge with the Tribunal and serve on the Respondent:
a. A Statement of Facts, Issues and Contentions in reply; and
b. any material and evidence in reply.
2. If the Applicant fails to comply with Direction 1 made 17 July 2024 (as varied above) then the application will stand dismissed as of the date and time compliance was required under that direction and pursuant to section 100(b) of the Administrative Review Tribunal Act 2024.
3. ….
My intention in making such directions was that should the Applicant fail to comply with Direction 1 which required that the Applicant’s material be lodged by 5pm on 28 March 2025 then the Application would stand dismissed, automatically and by operation of the direction. The direction was intended to be ‘self-executing’ in that respect.
From a review of the Tribunal’s records and systems it appears that the Applicant in response to the direction I had made lodged the following material with the Tribunal at the following times:
Document
Date and time of lodgement
1
An unsworn affidavit of Alexander Papazoglou
4.50pm, 28 March 2025
2
An unsworn affidavit of Demetris Christou
9.02pm on 28 March 2025
3
A Statement of Facts, Issues and Contentions
11.36pm on 28 March 2025
4
A sworn version of the affidavit of Demetris Christou
12.11pm on 31 March 2025
5
A sworn version of the affidavit of Alexander Papazoglou
12.19pm on 28 March 2025
As is clear from the times of lodgement identified above as at 5pm on 28 March 2025 the Applicant had not complied with direction 1 of my directions made 27 February 2025 and I do not understand that (or the lodgement times in paragraph [5]) to be in contest.
Section 100 of the Administrative Review Tribunal Act 2024 (ART Act) provides as follows:
Tribunal may dismiss application if applicant fails to comply with order etc.
The Tribunal may dismiss an application made to the Tribunal if the applicant fails to do either of the following within a reasonable time.
(a)Proceed with the application;
(b)Comply with this Act or an order of the Tribunal in relation to the proceeding in relation to the application.
Section 100 of the ART Act is in substantially similar terms to s42A(5) of the Administrative Appeals Tribunal Act 1975. Justice Davies in Berry v Commissioner of Taxation [2015] FCA 1244 when considering s42A(5) at [35] explained that:
“the section confers a discretionary power on the Tribunal to dismiss an application for review of a decision without proceeding to review that decision if the applicant fails within a reasonable time to proceed with the application or to comply with a direction by the Tribunal in relation to the application. That power is in aid of the objective in s 2A of the AAT Act.
There can be little doubt that s 100 is available as a discretionary power to manage proceedings and ensure that the objectives of the Tribunal (which are contained within s9 of the ART Act) are met.
It has also been held by the Tribunal previously that “Self-executing directions, or guillotine directions are a permissible way to manage applications to the Tribunal in some circumstances” (De Simone v Commissioner of Taxation [2017] AATA 1005[2])at [12] when considering a similar direction.
[2] see Senior Member O’Loughlin (as he then was) citing with approval Senior Member McCabe (as he then was) in Carey v Commissioner of Taxation (2014) 145 ALD 236 at [22]
Prior to the making of Direction 2 of the directions made 27 February 2025 (the Guillotine Direction) there had been persistent non-compliance with directions on the part of the Applicant. Whilst there were mitigating factors that led to some or all of that non-compliance there is no doubt that the making of such a direction was permissible and appropriate in this context.
There is now however some residual confusion between the parties as to whether the Guillotine Direction made by reference to s100 of the ART Act has been effective in dismissing the matter. This is owing to one further matter – that being the absence of any “notice” being sent by the Tribunal to the Applicant that the “application is dismissed”.
On 24 June 2025 the Respondent with the consent of the Applicant wrote to the Tribunal’s registry in the following terms:
The Respondent is writing to the Tribunal to clarify the status of the Proceeding with the Tribunal.
This request for clarification arises in the following circumstances:
1)On 27 February 2025, General Member Abood held a noncompliance directions hearing in this matter.
2)After hearing from the parties during the noncompliance directions hearing, General Member Abood made the attached Directions dated 27 February 2025 (Directions).
3)Direction 1 of the Directions required the Applicant to, amongst things, file and serve its SFIC and evidence by 5.00pm on 28 March 2025.
4) Direction 2 of the Directions states what is to occur if Direction 1 is not complied with.
The Respondent contends that Direction 2 has effect: De Simone and Commissioner of Taxation [2017] AATA 1005 at [14]. The Applicant disputes the Respondent’s contention.
The parties have conferred but have not reached a consensus on the status of the Proceeding in light of Direction 2 and, for the avoidance of doubt, it is a point of contention between the parties.
The Applicant contends that the Proceeding remains on foot, particularly in the absence of a notice that the application is dismissed: Haines and Commissioner of Taxation (Practice and procedure) [2025] ARTA 461, [17]; Assaf and Tax Practitioners Board (Practice and Procedure) [2024] ARTA 47, [18]-[20]; Singh (Migration) [2024] ARTA 242, [3]-[4]; Administrative Review Tribunal Act 2014 (Cth) ss 102(5), 102(7).
The Respondent contends that the Proceeding has been dismissed because Direction 2 has not been revoked or varied.
Ahead of today’s listing I understand that each party lodged with the Tribunal’s registry written submissions and the Applicant lodged an affidavit. This material was lodged by the parties to assist the Tribunal in further explaining the issues flagged by the letter of 24 June 2025. None of that material has made its way to me before today’s listing and the parties have indicated that they would prefer that I not adjourn this listing so as to recover and consider that material. This preference was due to time sensitivities arising from related proceedings which are in the Federal Court. I will therefore address the question of whether the Application should be progressed by way of further directions (or whether it shouldn’t because the matter has been dismissed) as best I can taking into account lodgement times that I have gleamed from the Tribunal’s systems, the contents of the 24 June 2025 letter and the brief representations the parties have made today.
Section 102 (relevantly) provides for an applicant to seek reinstatement where an application has been dismissed for failure to comply with directions as follows:
Reinstatement of application
When this section applies
(1) This section applies if the Tribunal dismisses an application.;
…
Parties can apply for reinstatement in other specified circumstances
(7) If the application is dismissed under:
(a)section 95 (applicant may withdraw application); or
(b)section 99 (Tribunal may dismiss application if applicant does not appear); or
(c)section 100 (Tribunal may dismiss application if applicant fails to comply with order etc.);
a party to the proceeding in relation to the application may apply to the Tribunal for reinstatement of the application within 28 days after the party receives notice that the application is dismissed (or such longer period as the Tribunal, in special circumstances, allows).
…
(9) If a party applies under subsection (7) and the Tribunal considers it appropriate to reinstate the application, the Tribunal may reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances
As apparent from s 102(7) an application for reinstatement may be brought within 28 days of a party receiving “notice that the application is dismissed (or such longer period as the Tribunal, in special circumstances, allows)”. The commencement of this period is uncontroversial where a dismissal takes effect on the date of a direction being made and where it is provided to an Applicant immediately after. However, where a dismissal direction is self-executing in nature the date on which the period commences for the purpose of s12(7) is a little more vexed.
From the correspondence of 24 June 2025 the Applicant now appears to make an argument that despite the self-executing nature of the Guillotine Direction the Application remains on foot “particularly in the absence of a notice that the application is dismissed”. In support the Applicant identifies a range of authorities and paragraphs within which it says stand for the proposition that the matter has not been dismissed. These were:
·Haines v Commissioner of Taxation [2025] ARTA 461 at [17];
·Assaf v Tax Practitioners Board [2024] ARTA 47 at [18]-[20];
·Singh v Minister for Immigration and Multicultural Affairs [2024] ARTA 242 at [3]-[4].
Whilst each of those cases and the paragraphs referred to are examples of the Tribunal considering whether a matter should be reinstated and, in doing so, turning its mind to the notification periods under s102(7) they appear to shed no light upon the efficacy of a self-executing direction in circumstances where a notice confirming a matter’s dismissal may not have been sent to an Applicant by the Tribunal after the order had been expressed to take effect.
As is clear from the language of s102(7) whilst the notice likely triggers the entitlement to seek reinstatement of an application and, somewhat more critically, the time by which it must be done it does not, in my view, attempt to dictate whether any prior direction made under s100 would be in itself effective.
Further, to the extent that it is argued (as best I understand) that section 102 is a companion provision to section 100 and the consequence being that without each of those provisions being effectively engaged then neither will have been effective I say as follows. Whilst I might accept that 102(7) will be enlivened upon a s100 direction taking effect I am not of the view that anything beyond that occurs. Put another way, in my view, there is nothing in the text of s102(7) or s102 more generally that could suggest that without a notice being sent to an applicant that a direction under s100 issued for non-compliance would either cease to take effect or render it void in some fashion.
For the reasons above I decline to make any further directions progressing the Application because it stands dismissed under s100(b) of the Administrative Review Tribunal Act 2024 (Cth) and has done so since the date of non-compliance with Direction 1 of the Directions made 17 July 2024 (as varied 15 November 2024 and 10 January 2024) being 5pm, Friday 28 March 2025.
Other matters and the foreshadowing of a reinstatement request
The parties today raised with me that:
·the Applicant was the defendant in an application brought in the Federal Court by a Deputy Commissioner of Taxation which sought to wind the Applicant up;
·those proceedings were next listed before the Federal Court on 16 July 2025; and
·the ‘status’ of the Application in the Tribunal bore some relevance to those wind up proceedings.
Counsel for the Respondent also advised me that she had standing instructions that if an application for reinstatement was to be made that the Respondent would not oppose such an application.
In light of the Respondent’s instructions vis-à-vis a potential reinstatement application the Applicant today made a further request that the Tribunal should consider exercising its powers under s86 of the ART Act to vary or revoke the direction I made on 27 February 2025. Section 86 provides as follows:
Tribunal may vary or revoke Tribunal order.
Subject to this Act, a power of the Tribunal to make an order includes the power to revoke or vary the order.
The Applicant’s representative submitted that the Tribunal ought consider varying or revoking the Guillotine Direction so that the practical outcome would be that the time for compliance with it would have been extended such that the Applicant’s lodgements (see [5] above) would then be considered to be within time. It was argued that should the Tribunal feel inclined to do so it would represent the most efficient way for the application to be brought back ‘online’ without the need for a formal reinstatement application being made.
The Applicant’s representative acknowledged that he could point to no authority where s 86 had been used in such a way but submitted that the language of the section led to a conclusion that it could be deployed to vary or revoke “any orders” made by the Tribunal (including dismissal orders).
The Respondent’s counsel, who was not on prior notice of such a request being made, submitted in response that in the circumstances of this case even if the power was available (and she didn’t concede it was) it wouldn’t be appropriate given the Guillotine Direction had been required to secure the Applicant’s compliance with general timetabling obligations. In her view the more appropriate path was for the Applicant to take steps to make an application for reinstatement under s102(7) and, should the Tribunal be satisfied that the Application ought be reinstated, for that to occur.
I agree with the view of the Respondent in that regard. Without having considered any authority on the matter I would say the following:
(i)In the circumstances of this case where there has been challenges with compliance it would not, in my view, be appropriate to vary the Guillotine Direction to create something of a legal fiction about the Applicant’s past compliance;
(ii)I am not convinced that given the existence of the provisions in the ART Act which expressly provide for applications to be dismissed for non-compliance and thereafter reinstated that the power under s86 is intended to operate in the fashion sought by the Applicant. I note that the section resides within subdivision B of Division 6 of Part 4 of the ART Act which is concerned with “management of proceedings” more generally; and
(iii)I am also not convinced that such a power can be deployed to overcome a matter’s dismissal where, save for expression provisions allowing for reinstatement, the Tribunal would otherwise likely be functus officio.
Finally, the above views in no way preclude the Applicant from making a reinstatement application under s102 of the ART Act. To the extent it may be considered that a notice issued by the Tribunal for the purpose of s102 is a preconditional to such an application for reinstatement being made I will give an administrative instruction to our registry that such a notice be sent to the Applicant on the same day these reasons are provided.
Date(s) of hearing: 9 July 2025
Applicant: Mr Meena Hanna, White Knight Lawyers Counsel for the Respondent: Ms Melanie Baker KC
Ms Anna WilsonSolicitors for the Respondent:
Ms Laura Anderson, McInnes Wilson Lawyers
1
5
0