Buchanan v Administrative Appeals Tribunal

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FEDERAL COURT OF AUSTRALIA

Buchanan v Administrative Appeals Tribunal [2013] FCA 1099

Citation: Buchanan v Administrative Appeals Tribunal [2013] FCA 1099
Parties: IAN BUCHANAN v ADMINISTRATIVE APPEALS TRIBUNAL and COMMISSIONER OF TAXATION
File number: QUD 186 of 2013
Judge: COLLIER J
Date of judgment: 24 October 2013
Catchwords:

ADMINISTRATIVE LAW – appeal against decision of Administrative Appeals Tribunal (“Tribunal”) – whether errors of law under s 44 Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) – application for reinstatement of application pursuant to s 44A(9) AAT Act – claims of discrimination and denial of natural justice – discretion of Tribunal – relevant considerations

PRACTICE AND PROCEDURE – application for extension of time to file notice of appeal against decision of Tribunal – objection to competency of appeal – informal application for adjournment of hearing – litigant in person – relevant principles where application for adjournment

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 42A(2), 42A(8), 42A(9), 42A(10), 44, 44(1)
Federal Court of Australia Act 1976 (Cth) s 43
Federal Court Rules 2011 (Cth) rr 5.23, 33.30
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 cited
Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748 cited
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 cited
Jordan v Smart [1961] NSWR 735 cited
Phillips v Inspector-General in Bankruptcy (2011) 121 ALD 562; [2011] FCA 612 cited
Price Street Professional Centre Pty Ltd v Commissioner of Taxation (2007) 97 ALD 593; [2007] FCAFC 154 cited
The Taxpayer v Commissioner of Taxation [2012] AATA 919 cited
Thornberry v R (1995) 69 ALJR 777 cited
Trustee of the Mladenis Family Trust T/A Affinity Consulting Services v Commissioner of Taxation [2006] FCA 1406 cited
Date of hearing: 23 October 2013
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 45
Counsel for the Applicant: The Applicant did not appear
Counsel for the First Respondent: The First Respondent has been granted leave not to appear
Counsel for the Second Respondent: Ms M Brennan
Solicitor for the Second Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 186 of 2013
BETWEEN:

IAN BUCHANAN
Applicant
AND:

ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

COMMISSIONER OF TAXATION
Second Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

24 OCTOBER 2013

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The application for an extension of time in which to file a notice of appeal filed 15 May 2013 be dismissed.

2.The notice of appeal filed 1 February 2013 be dismissed.

3.Mr Ian Buchanan pay the costs of the Commissioner of and incidental to this proceeding, to be taxed if not otherwise agreed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 186 of 2013
BETWEEN:

IAN BUCHANAN
Applicant
AND:

ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

COMMISSIONER OF TAXATION
Second Respondent

JUDGE:

COLLIER J

DATE:

24 OCTOBER…

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Details
Case
[2013] FCA 1099
Decision Date

CaseChat Overview and Summary

The appeal in Buchanan v Administrative Appeals Tribunal concerns the decision of the Administrative Appeals Tribunal (AAT) to decline Mr. Buchanan's application for reinstatement of his substantive application to review a taxation liability decision. The substantive application had been dismissed due to Mr. Buchanan's failure to appear at the scheduled hearing. The legal issues in this appeal revolve around the discretionary power of the AAT to reinstate a dismissed application, and whether the Tribunal correctly exercised its discretion in declining to reinstate Mr. Buchanan's application. Specifically, the appeal questions whether the Tribunal's decision was made without regard to the principles of natural justice and procedural fairness, and if the questions of law articulated in the Notice of Appeal were adequately specified.

The Court considered the statutory framework governing the AAT's power to reinstate dismissed applications, as outlined in s 42A(9) of the Administrative Appeals Tribunal Act 1975. The Court noted that the power to reinstate is discretionary, and that the Tribunal must consider several factors in exercising this discretion, including the conduct of the applicant, the potential prejudice to the respondent, and the merits of the substantive case. The Court further highlighted that the obligation to act fairly underpins the exercise of this discretion. In assessing the Tribunal's decision, the Court found that the reasons provided by the Tribunal for declining reinstatement were consistent with the relevant statutory framework and did not evidence any procedural unfairness or error in the application of the law. The Court concluded that the Tribunal had properly exercised its discretion and that the appeal should be dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The decision against which Mr Buchanan appeals is that of Senior Member McCabe in The Taxpayer v Commissioner of Taxation [2012] AATA 919. The decision is relatively short, and it is useful to set it out in full because it explains the background to the current proceeding in this Court:1.This application for reinstatement was declined for reasons given orally at the hearing on 12 December 2012. The applicant subsequently requested written reasons for that decision. The following reasons are based on the notes taken by my associate at the hearing.2.The applicant wants to be released from his liability to pay tax in the amount of $119,748.05. He owns assets but has not worked for many years and claims he is experiencing financial hardship. The Commissioner was not satisfied and declined to release the taxpayer from the obligation to pay tax.3.The matter came on for a hearing before Deputy President Hack in Cairns on 5 November 2012. A few days before, the applicant had asked to attend the hearing by telephone, but the request was declined. That is not surprising: the applicant’s evidence was likely to be crucial, and it would be harder to make an assessment of credit if the Tribunal did not have the opportunity to observe the applicant in person. The hearing would also be more difficult to manage because the applicant could not be shown documents. In any event, the applicant was required to attend. He said he could not because he suffered from post traumatic stress disorder (PTSD). He was asked to provide medical evidence but appropriate evidence was not forthcoming. The matter was dismissed under s 42A(2) of the Administrative Appeals Tribunal Act 1975.4.The applicant subsequently applied for reinstatement. He appeared by phone at the hearing for reinstatement on 27 November 2012. He repeated his claims about PTSD. He did not have any additional evidence but said he had an appointment to see a psychiatrist within a week or so. I decided to adjourn the application for reinstatement so I could have that evidence to hand before making a decision.5.A report from Dr Trott dated 10 December 2012 was duly filed. Dr Trott confirmed the applicant suffered from a chronic moderate untreated PTSD which has morphed into a chronic moderate anxiety disorder not otherwise specified. Dr Trott confirmed the applicant “would find the court attendance difficult” and suggested evidence could be given by a less confronting method, such as telephone or video evidence, or he could have the assistance of a support person if he were to appear in court.6.I do not think the evidence of Dr Trott established it would be unfair or inappropriate to require the applicant to attend, albeit that provision could be made for him to have the assistance of a support person.7.The matter came back on for hearing on 12 December. The Commissioner continued to oppose reinstatement.8.Section 42A(9) says the Tribunal may reinstate the application if it is satisfied it is appropriate to do so. When considering a request for reinstatement, the Tribunal will usually have regard to a number of factors albeit that it is required to reach a view that it is appropriate in all the circumstances to reinstate (or not) the application.9.I am not particularly impressed by the applicant’s excuse for not attending the hearing. He did not have access to a competent medical opinion at the time he decided not to attend. If he had sought appropriate assistance and treatment, he would have been able to go through with the hearing. He pointed out he had earlier been involved in proceedings involving Centrelink where he was allowed to participate by phone, but that was a different sort of matter raising different issues. He was not entitled to assume he could proceed in that way on a subsequent occasion.10.Even so, I accept the applicant faced difficulties. What of the other matters? I must consider prejudice. The Commissioner has already thrown away substantial costs in dealing with this matter. He sent representatives to Cairns for the hearing when the applicant did not show up as required. The prejudice for the applicant is presumably greater: he will not have the opportunity to press his claim, although the Commissioner’s representative, Mr Bell, suggested there was a chance the applicant could seek the indulgence of the Department of Finance and Administration.11.There is also the question of merit: does the substantive application have sufficient merit to justify reinstatement? I am not supposed to conduct a mini-trial, and I am reluctant to deny the applicant the opportunity to represent his case if there is material suggesting there may be real issues to be decided. One must be particularly careful in the case of an unrepresented applicant who is not necessarily in a position to immediately point to the merits of his case.12.After hearing from the parties, I decided the applicant’s case is not especially meritorious. While there are disputes about valuations, the applicant does have access to assets that are capable of satisfying, or partly satisfying, his obligations. A perusal of the limited material available on the file together with the submissions of the applicant suggests he has limited prospects of success, given the requirement in s 14ZZK of the Taxation Administration Act 1953 that he establish the Commissioner’s decision should be made differently.CONCLUSION13.In all the circumstances, I am not satisfied it would be appropriate to reinstate the application.Appeal against Tribunal decision

Ratio Decidendi

Legal Principle Established

The grounds of objection to competency stated by the second respondent in the notice of objection to competency filed on 3 May 2013 are:1.That the 2 Questions of Law (the Questions), as stated in the Notice of Appeal:1.1.Do not properly articulate a question of law arising in the proceedings; and1.2.Contrary to Rule 33.12(2) of the Federal Court Rules 2011, the Questions fail to state any precise question or questions of law to be raised on appeal.In the alternate:2.Section 42A(10) of the Administrative Appeals Tribunal Act 1975 (the Act) permitted the Tribunal to reinstate [2012] AATA 919 (the proceedings) at its own discretion.3.The Questions allege a denial of natural justice and procedural fairness which is without merit as it is clear from the face of the Tribunal’s reasons for decision that the Applicant was afforded an opportunity to be heard prior to the Tribunal making its final decision.Consideration The application before Senior Member McCabe was for reinstatement of Mr Buchanan’s substantive application to review the deci`sion of the Commissioner, where the Commissioner had upheld a decision to refuse Mr Buchanan a release from the payment of a taxation liability in the amount of $119,748.05 incurred between the income years ended 30 June 2001 to 2008. As is clear from the reasons for decision of Senior Member McCabe, Mr Buchanan’s substantive application had been dismissed by Deputy President Hack pursuant to s 42A(2) of the AAT Act for want of appearance of Mr Buchanan. An application for reinstatement of a decision of the Tribunal may be made pursuant to s 42A(9) of the AAT Act, which provides:If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances. Relevantly, s 42A(8) of the AAT Act provides:If the Tribunal, under subsection (2), has dismissed an application (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), the person who made the application may, within 28 days after receiving notification that the application has been dismissed, apply to the Tribunal for reinstatement of the application.(I note that there is no suggestion that the orders of the Tribunal in dismissing Mr Buchanan’s substantive application on 5 November 2012 were made in error, so as to invoke s 42A(10) of the AAT Act.) The power vested in the Tribunal to reinstate an application pursuant to s 42A(9) of the AAT Act is clearly a discretionary power. Factors relevant to the exercise of that discretion will vary depending on the facts of an individual case. However, relevant factors include:·the conduct of the applicant for reinstatement;·any prejudice (most obviously prejudice to the respondent);·the merits of the substantive case; and·in considering these matters, the overriding obligation to do what is fair in the circumstances.(Trustee of the Mladenis Family Trust T/A Affinity Consulting Services v Commissioner of Taxation [2006] FCA 1406 at [4].)