Chew and Tax Practitioners Board

[2019] AATA 3410

Chew and Tax Practitioners Board [2019] AATA 3410 (22 August 2019)

Division:TAXATION AND COMMERCIAL DIVISION

File Number(s):      2019/3497

Re:Hun Teong Chew

APPLICANT

AndTax Practitioners Board

RESPONDENT

DECISION

Tribunal:Deputy President Bernard J McCabe

Date:22 August 2019

Date of written reasons:        3 September 2019

Place:Adelaide

The stay application is denied.

..................................[sgd]......................................

Bernard J McCabe, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – TAX AGENT REGISTRATION – application for a stay of a decision to terminate tax agent registration – merits of the substantive application – prospects of success – no prejudice to the respondent – public interest – whether the review would be rendered nugatory if stay not granted – stay application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) section 41(2)

CASES

Re Scott and Australian Securities and Investments Commission [2009] AATA 798

REASONS FOR DECISION

Deputy President Bernard J McCabe

3 September 2019

1. These proceedings arise out of a decision made by the Tax Practitioners’ Board to terminate the applicant’s registration as a tax agent and prohibit him from seeking re-registration for a 12 month period. The applicant has asked the Tribunal to stay the operation or implementation of the cancellation decision under review pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 pending the outcome of that review. The decision was due to come into effect on 17 June 2019; interestingly, the applicant did not commence these proceedings until that day.  The respondent consented to an interim stay until the stay application could be determined.

2. A telephone directions hearing was held to establish a timetable for the stay application. The telephone stay hearing was listed for 21 August 2019 at 10am. The parties were advised that the stay hearing would be held at 10am AEST on 6 August 2019. 

3. When the stay hearing commenced, the applicant did not answer his phone. I decided to commence the hearing. I called for the listing notice. When it was located on the file I was told there might have been some confusion: the listing notice did not make clear the matter would be held at 10am AEST. That was an issue because the applicant resides in Adelaide. I decided to adjourn until 10am Adelaide time, just in case the applicant had been confused. At the appointed time, my associate attempted to contact the applicant again. He still did not answer. I considered whether the application or review should be dismissed under s 42A(2), and I also considered a further adjournment. Ms Paolucci, who appeared for the Board, suggested it would be appropriate to deal with the stay application in the absence of the applicant. Ms Paolucci pointed out the applicant could always make a fresh application for a stay if there was something we did not address. Given I had the benefit of written submissions from both parties – albeit those from the applicant were very brief – I decided to proceed to determine the stay application. I gave oral reasons for my decision at the end of the hearing. The reasons that follow have been distilled from the transcript.

4. I began by noting s 41(2) requires that I be satisfied of a jurisdictional fact: the stay power is only available ‘for the purpose of securing the effectiveness of the hearing and determination of the application for review’. After reviewing the submissions from the applicant and noting the absence of evidence, I decided I could not be satisfied the proceedings would be rendered nugatory if a stay was not ordered. There was not enough material to suggest the review process would be compromised.

5. I went on to consider the position if I were to be satisfied the jurisdictional fact had been established. In doing so, I followed the general approach adopted by the Tribunal in Scott and Australian Securities Investments Commission [2009] AATA 798. I began by looking to the merits of the case. I pointed out it was not appropriate to conduct a mini-trial but even so I have some concern that, on the basis of the limited material before me, the applicant’s case did not appear especially compelling. I stressed my observation was based on the material as it stood at that point; I acknowledged the picture might look quite different at a hearing. I also considered the impact on the applicant if a stay were not granted. He had mentioned his health concerns in the submissions, and I accept he is likely to experience stress and inconvenience and presumably some financial loss if he were unable to continue his practice in the short term. I also acknowledged his clients might experience inconvenience in that event. But I added it was difficult to form a clear view on that issue because there was no clear evidence of any of this.

6. I considered whether the Board would be prejudiced if a stay were granted. I am not persuaded the Board would be adversely impacted in the discharge of its duties if the applicant were allowed to continue in practice while the review continued.

7. I also considered the public interest. The allegations against the applicant are very serious. They raise questions about his fitness to practice. The public interest demands a more conservative approach to risk in cases like this.

8. On balance, I was not satisfied it would be appropriate to order a stay in all the circumstances – although I do not think the stay power is engaged in any event given the paucity of evidence about the impact on the review process if a stay were not granted. I decided to refuse the stay application.

9. Having made that decision and given oral reasons, I was informed by my associate that he had received a message to the effect that the applicant had telephoned the Tribunal after the hearing had commenced. I considered whether it was appropriate to undo what had just been done and permit the applicant to appear. I decided against that course because I am satisfied the applicant had a reasonable opportunity to appear and make his case at the appointed time. 

I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe

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Associate

Dated: 3 September 2019

Date(s) of hearing:	22 August 2019
Date final submissions received:	20 August 2019
Applicant:	No appearance
Solicitors for the Respondent:	Ms L Paolucci and Ms L Chen