Bhatti and Commissioner of Taxation (Taxation)

[2019] AATA 2482

Bhatti and Commissioner of Taxation (Taxation) [2019] AATA 2482 (6 August 2019)

Division:TAXATION AND COMMERCIAL DIVISION

File Number(s):      2018/4352

Re:Bhatti

APPLICANT

AndCommissioner of Taxation

RESPONDENT

DECISION

Tribunal:Deputy President Bernard J McCabe

Date:6 August 2019

Place:Sydney

The applicant’s application to have the matter reinstated pursuant to section 42A(9) of the Administrative Appeals Tribunal Act 1975 is refused.

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Deputy President Bernard J McCabe

CATCHWORDS

PRACTICE AND PROCEDURE – applicant failed to attend directions hearing – application for review dismissed – application for reinstatement – the applicant had been given multiple opportunities to comply with directions – extensive delay in application – likelihood of further default and delay - reinstatement application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 32, 42A

REASONS FOR DECISION

Deputy President Bernard J McCabe

6 August 2019

BACKGROUND TO THE APPLICATION

1. Ms Alia Bhatti has asked the Tribunal to reinstate review proceedings that were dismissed pursuant to s 42A(2) of the Administrative Appeals Tribunal Act 1975 (the Act). The proceedings were dismissed on 13 June 2019 after the applicant’s representative failed to appear at a directions hearing.

2. The proceedings were commenced in August 2018. The applicant was represented by her husband, Mr Qureshi, who is also a tax agent.  Both Ms Bhatti and Mr Qureshi have experienced significant health problems. Mr Qureshi, in particular, has serious kidney problems which involved twice-weekly visits to the hospital. He has also had several longer, unscheduled hospital stays. Those health problems have affected the quality of his representation of the applicant and resulted in serious delays.

3. The applicant was first directed to file a statement of facts, issues and contentions and her evidentiary material by 8 November 2018. Mr Qureshi sought repeated extensions of time to comply with those directions. The respondent consented to the extensions on a number of occasions but opposed a request for a further extension of time on 9 January 2019. At a non-compliance hearing on 22 January 2019, I acknowledged both Mr Qureshi and Ms Bhatti produced medical certificates describing their health problems. Given those documented challenges, I decided it was not appropriate to dismiss the proceedings but I discussed my concerns about the future conduct of the matter. I explained the Tribunal will be solicitous of an applicant who experiences challenges arising out of her health, but added there is an expectation her representative will do the job he has been retained to do.  Mr Qureshi and the applicant were asked to consider whether, in light of Mr Qureshi’s ongoing health issues, the applicant would be better served being represented by somebody else. The fact he is also the applicant’s husband is ultimately beside the point: she and he were able to brief somebody else to act. I warned Mr Qureshi on that occasion I was not disposed to tolerate further delay occasioned by his ill-health. If the applicant chose to persist with his services, she was accepting the risk he could not perform.

4. The applicant decided to retain Mr Qureshi’s services notwithstanding that warning. His health continued to be an obstacle. There were further delays in the proceedings as a result. In March 2019, Mr Qureshi advised that the applicant’s father had died, he had received a kidney transplant and the applicant was looking after her widowed mother. A non-compliance hearing was listed for 29 March 2019. That hearing was vacated after Mr Qureshi provided medical certificates stating that his wife was unable to attend the Tribunal or give instructions until 12 June 2019.

5. On 13 June 2019, a further directions hearing was listed to deal with the outstanding non-compliance. The hearing was listed for 11AM and the applicant and her representative were warned that if neither the applicant nor representative appeared at the directions hearing, the Tribunal had the power to dismiss the application under section 42A(2) of the Act. The hearing commenced at 11.07AM but there was no sign of Mr Qureshi. I decided to dismiss the proceedings in light of his non-appearance. I considered briefly whether the proceedings should be dismissed pursuant to s 42A(5) on the basis the applicant had failed to comply with the directions in a timely way, but I decided against doing so: a dismissal under s 42A(5) would preclude the possibility of reinstatement in the even the applicant had a good excuse for the failure to appear.

6. As it happens, Mr Qureshi telephoned the Tribunal at 11.15AM to say he had been delayed. But the hearing had already concluded. He was told about the option to seek reinstatement under s 42A(9).

7. The applicant applied to have the matter reinstated on 18 June 2019. At the reinstatement hearing on 26 June 2019, Mr Qureshi again appeared on behalf of the applicant. He said he had been delayed in traffic on the last occasion. He spoke about his health difficulties and the merits of the case. He said he had spoken with a lawyer about taking over the case but he was unable to find anybody willing to do so.

8. I told Mr Qureshi I was worried that, even if I accepted he had a legitimate excuse for not appearing at the earlier hearing, I was unlikely to form the view it was appropriate to reinstate the matter if I could not be satisfied the applicant would thereafter progress the proceedings in a timely way. Rather than making a decision on the spot, I decided to adjourn the reinstatement application for a month and said I would consider what to do at a resumed hearing. In the meantime, I told Mr Qureshi that the applicant could give me comfort about the future conduct of the proceedings in one of two ways. One option was to engage a new representative who was capable of presenting her case. Alternatively, if Mr Qureshi was to remain involved in the proceedings, he could demonstrate his fitness by complying with the outstanding directions by 24 July 2019. In either event, I would see how things stood at the resumed hearing. I made it clear that if neither of those things occurred, that would be relevant to my decision. Mr Qureshi agreed that was a fair course.

9. Mr Qureshi emailed the Tribunal at 7.33PM on 22 July asking for another extension of time to file the material, and asking for the resumed hearing to be re-listed from 31 July 2019 to 7 August 2019. He said his preparation for the resumed hearing had been disrupted after he spent two days in hospital. On 23 July, my associate wrote to the applicant to advise the extension of time would not be granted.

10. On 28 July 2019, Mr Qureshi filed a one-and-a-half page document that was described as a statement of facts, issues and contentions. It was plainly inadequate. He also filed a document with eight dot points referring to evidence he planned to produce. The documents themselves were not produced, and I note he did not refer to a statement from the applicant.

11. Armed with the knowledge that the applicant had still not complied with the outstanding direction while apparently choosing to persist with Mr Qureshi’s services, I walked to the hearing room at noon on 31 July 2019 in time for the start of the resumed hearing. I was told Mr Qureshi had just phoned the Tribunal to say he would be 15 minutes late. I delayed the commencement of the hearing until 12.20PM but Mr Qureshi had not appeared.  Mr Bitar, who appeared for the Commissioner, argued that the reinstatement application should be refused in all the circumstances.

12. I adjourned the hearing and reserved my decision. I was told some time later that Mr Qureshi had arrived after the conclusion of the hearing, but I was not inclined to call Mr Bitar back.

    THE CRITERIA GOVERNING REINSTATEMENT APPLICATIONS

13. In cases like this, the Tribunal will ordinarily look to the applicant for an explanation for the failure which resulted in the dismissal. The absence of a good excuse is not necessarily fatal, but it will be relevant alongside other factors. It will also briefly consider the merits of the substantive application, as there is no point reinstating what appears to be a hopeless case. The Tribunal will consider the consequences for the applicant if the matter is not reinstated, and any prejudice to the respondent if the proceedings were to be resurrected. Ultimately, though, the question is whether it is appropriate in all the circumstances that the matter be reinstated. One of the relevant circumstances is the likelihood of further default and delay.

14. Mr Qureshi’s failure to attend the directions hearing at the appointed time on 13 June 2019 was attributed to traffic, which is not a compelling excuse. I accept the applicant’s substantive case may have merit, which would ordinarily a powerful consideration in favour of reinstatement. I accept the applicant will be deprived of the opportunity to obtain a review if the matter is not reinstated. I also accept the Commissioner will not be subject to serious prejudice were the matter to proceed, albeit that he has already been inconvenienced significantly by the delays.

15. But then there is the extensive delay which has already occurred, and the likelihood that the delays will continue. The Tribunal has given the applicant every opportunity to progress her case. Her representative, Mr Qureshi, has been unable to his job. He has amply demonstrated there is no prospect of him doing that job in the near future. While I have sympathy for Mr Qureshi – I do not dispute he is seriously ill – he does not have to be involved in the proceedings. The applicant has been given opportunities to engage somebody else if she is unable to represent herself. If she chooses to persist with Mr Qureshi’s services, she must be taken to have accepted the risk he could not do the job.

16. Section 32 of the Act says an applicant is entitled to be represented by anyone she chooses. I respect her choice. But if she chooses somebody who cannot adequately represent her, then, at some point, she must accept the consequences of that choice.

17. Section 2A of the Act says the Tribunal must ensure its proceedings are “fair, just, economical, informal and quick”. There is potentially some tension between these aims, but I am satisfied they ultimately point to the same conclusion in this case. The applicant has had ample opportunity to present her case even allowing for her illness, and she is unable to assure me she will do better in the future. In all the circumstances, I am not satisfied it is appropriate to reinstate the application.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe

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Associate

Dated: 6 August 2019

Date(s) of hearing:	26 June 2019 and 31 July 2019
Advocate for the Applicant:	Mr Z Qureshi
Solicitors for the Respondent:	Mr N Bitar - ATO Review and Dispute Resolution