CDWN and Commissioner of Taxation (Taxation)

[2023] AATA 3628

CDWN and Commissioner of Taxation (Taxation) [2023] AATA 3628 (16 June 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:16 June 2023

Place:Sydney

The application is dismissed for a failure to proceed under section 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth).

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

Senior Member D Benk

CATCHWORDS

PRACTICE AND PROCEDURE – whether the Applicant has failed to proceed with the application – where the applicant has continuously failed to comply with Direction by the Tribunal – no appearance at non-compliance Directions hearing – application dismissed.

LEGISLATION

Administrative Appeals Tribunal  Act 1975 (Cth) section 41 and42A

REASONS FOR DECISION

Senior Member D Benk

16 June 2023

1. The Applicant seeks review of a decision of the Respondent dated 2 November 2021 (‘the Objection Decision’) in relation to his income tax assessment for the year ended 30 June 2018. The Respondent relies on section 14ZZK of the Taxation Administration Act 1953 (Cth) and contends that the Objection Decision should be affirmed.

2. By application to the Tribunal dated 27 December 2021, the Applicant seeks relief of the above tax assessment and resultant debt.

   BACKGROUND

3. The matter was progressed through the normal pathways at the Tribunal, although appears to have fallen into abeyance until it was listed for a Directions Hearing by telephone on 27 April 2023.  The reason for the delay was due in part to difficulties contacting the Applicant who has declined to provide the Tribunal with a contact telephone number.

4. At the Directions Hearing by telephone, the parties agreed to timetable the matter for a hearing.  Directions to this effect were made with both parties having various obligations to ensure that a case management strategy was fixed and adherence to the Charter of the Tribunal.  

5. The Applicant had failed to comply with the following Directions, :

   The Applicant is to provide a contact telephone number to the Tribunal and the Respondent, on which he may be contacted on or before 12 May 2023 and which will be available for use for the duration of the entire hearing.  This may be done via telephone or via express post.

   On or before 29 May 2023, the Applicant must file and serve any written submissions, or otherwise advise the Respondent and the Tribunal in writing that the Applicant will not be providing any written submissions via express post;

6. On 9 June 2023, the matter was listed for a Non-Compliance Direction Hearing by telephone to address the Applicant’s failure to comply with the Directions of the Tribunal.

7. The Applicant failed to attend or to contact the Registry for that Directions Hearing.  The Tribunal is satisfied that the Applicant was appropriately notified of the Directions Hearing.

   ISSUE

8. The sole issue before the Tribunal is whether to dismiss the application in these proceedings pursuant section 42A of the AAT Act (the Act).

   LEGISLATION

9. Section 42A of the AAT Act relevantly provides:

   Discontinuance, dismissal, reinstatement etc. of application

   …

   Dismissal if party fails to appear

   (2)  If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:

   (a)if the person who failed to appear is the applicant--dismiss the application without proceeding to review the decision; or

   (b)in any other case--direct that the person who failed to appear shall cease to be a party to the proceeding.

   …

   Dismissal if applicant fails to proceed or fails to comply with Tribunal's direction

   (5)  If an applicant for a review of a decision fails within a reasonable time:

   (a)to proceed with the application; or

   (b)to comply with a direction by the Tribunal in relation to the application;

   the Tribunal may dismiss the application without proceeding to review the decision.

   NON-COMPLIANCE DIRECTIONS HEARING - 9 JUNE 2023

10. The Tribunal has, since the inception of this application, been unable to easily contact the Applicant by telephone due to his refusal to provide a telephone number.  At the Directions Hearing on 27 April 2023, the Applicant indicated he does not have a telephone. He also stated that his son has a mobile telephone (and he is the official carer for his son), but that he would not burden his son for the telephone number. 

11. The Respondent attended the Non-Compliance Directions hearing and had complied with the Directions made on 27 April 2023.  The Respondent confirmed that it had not had any contact with the Applicant and made submissions to dismiss the application in those circumstances.  The Tribunal indicated that it is loathe to dismiss, and that this was an avenue of last resort.  In response, the Respondent submitted:

    -    The Applicant had instigated this matter in late 2021 but has failed to progress the matter due to his failure to comply with various Directions over the years;

    -    The Applicant has failed to provide updated evidence of income which is particularly relevant to his claim of ‘hardship’. The only evidence provided in relation to a hardship claim was a rates notice in June 2022 but since then the Applicant has not been forthcoming regarding his financial circumstances;

    -    The Applicant was directed to provide a hearing certificate to the Tribunal in September 2022 and failed to comply;

    -    Further and more recently the Applicant has failed to provide a contact number, thereby frustrating communication both with the Respondent and the Tribunal and has also failed to provide submissions or comply with the Directions.

12. The Respondent’s submissions were noted, however it was restated to the Respondent that dismissal is a course of action that is a last resort and that the Tribunal must have regard to a number of matters before embarking on such a significant course of action.

13. Relevantly, the Tribunal notes:

    -the Respondent has been put to considerable effort and expense over the last two years and has, at all times, continued to comply with the Directions of the Tribunal;

    -It cannot be ignored that it is at a cost to the public to have this matter remain at the Tribunal;

    -The Tribunal has an obligation to ensure that an appropriate case management strategy is set in place to progress the matter expeditiously, and to ensure that the objectives of the Tribunal in Section 2A of the Act are exercised;

    -However, it also cannot be ignored that the Applicant is self-represented and is not legally qualified.  The Registry of the Tribunal has attempted to facilitate contact with the Applicant but has been frustrated by an inability to easily contact him, relying on the postal service.  

14. Pursuant to section 42A(2) of the Act, the Tribunal has the power to dismiss the matter for a failure to appear before the Tribunal, or alternatively under section 42A(5) for a failure to proceed with an application. In all of the circumstances, the tribunal finds the matter should be dismissed pursuant to section 42A(5) of the Act. It is important that the matter is concluded. The Applicant, particularly in the last year, has failed to take any real action to progress his matter in the Tribunal.

15. It is not necessary for the Tribunal to consider dismissal under section 42A(2) as the Tribunal has determined the matter should be dismissed under section 42A(5).

    DECISION

16. The application is dismissed for a failure to proceed under section 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member D Benk

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

Associate

Dated: 16 June 2023

Date(s) of hearings:	27 April 2023 and 9 June 2023
Applicant:	By telephone
Solicitors for the Respondent:	A. Sasidharan, Commissioner of Taxation