CDWN and Commissioner of Taxation (Taxation)

[2023] AATA 3650

CDWN and Commissioner of Taxation (Taxation) [2023] AATA 3650 (11 August 2023)

Division:TAXATION AND COMMERCIAL DIVISION

File Number(s):      2021/10325

Re:CDWN

APPLICANT

AndCommissioner of Taxation

RESPONDENT

DECISION

Tribunal:Senior Member D Benk

Date:11 August 2023

Place:Sydney

The application for reinstatement is refused.

..................................[SGD]......................................

Senior Member D Benk

CATCHWORDS

APPLICATION FOR REINSTATEMENT – application dismissed under section 42A(5) – whether power in section 42A(9) enlivened – whether application dismissed in error – application refused 

LEGISLATION

Administrative Appeals Tribunal Act (Cth) ss. 42A(5), 42A(9), 42A(10)

CASES

Brehoi v Minister for Immigration and Multicultural Affairs [1999] FCA 772

REASONS FOR DECISION

Senior Member D Benk

11 August 2023

1. On 16 June 2023, the application was dismissed for a failure to proceed under section 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act). Written reasons for the decision were given and in the interests of brevity will not be repeated here.

2. On 26 June 2023, the Applicant requested reinstatement on the following grounds;

   (a)That he had advised the Registry that he would participate by telephone conference from his local Federal MP’s office, but the MP’s office could not provide a telephone number for connection by the timeframe stipulated in the case management timetable;

   (b)That attempts to secure an alternative telephone number for the Tribunal hearing were unsuccessful as those that he approached were concerned about ‘government intrusiveness’ and at the age of 80 he has ‘no knowledge of such gadgets so would be frightened to use them’;

   (c)Had he known that a contact number was so important he would have opted to have the matter reviewed on the papers; and

   (d)The non-resolution of the matter has impacted himself and his disabled son for whom he is a carer.

3. Reinstatement provisions are found in the Act. As the matter was dismissed for a failure to proceed (subsection 42A(5)), I formed the view that an interlocutory hearing was futile. I proceeded to consider the request on the papers.

4. In the absence of reference to a specific reinstatement provision of the Act, I will infer the Applicant asks the Tribunal to reinstate the proceedings using the power in section 42A(9) which states ‘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’.

5. The power in section 42A(9) of the Act is only available where the proceedings were dismissed pursuant to sections 42A(1B) or (2). The power in section 42A(9) is not available where the proceedings were dismissed pursuant to section 42A(5): see Brehoi v Minister for Immigration and Multicultural Affairs [1999] FCA 772 at [24]-[26] per Whitlam, Moore and Katz JJ.

6. Section 42A provides for dismissal and reinstatement, but the reinstatement power is limited for a reason. The Tribunal’s review mechanism is provided to improve the quality of decision-making and provide individual relief from administrative injustice. It is incumbent on individuals who seek review to press their case. The power in section 42A(9) is necessary to avoid unfairness. But that power is not available where the dismissal occurs pursuant to section 42A(5), because the applicant has already been accorded procedural fairness. The rules are strict because it is inefficient for the bureaucracy to be tied up in prolonged and meandering review processes. For the sake of abundant caution, I have also turned my mind to the provisions found in section 42A(10) which is a power to reinstate where the dismissal is attended by error. In this case, the proceedings were dismissed because the Applicant did not comply with the directions which clearly notified him of the consequences for such failure and so this relief is not available.

   Conclusion

7. For these reasons, the application to reinstate is refused.

I certify that the preceding 7 (seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D Benk.

...................................[SGD].....................................

Associate

Dated: 11 August 2023