David Mahaffy and Tax Practitioners Board

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[2015] AATA 173  

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/5357

Re

David Mahaffy

APPLICANT

And

Tax Practitioners Board

RESPONDENT

DECISION

Tribunal

Deputy President J W Constance

Date 26 March 2015 
Place Canberra

In accordance with subsection 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth), Mr Mahaffy’s application for review of the decision of the Tax Practitioners Board, dated 11 September 2013, is dismissed.

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

Deputy President J W Constance

Catchwords

PRACTICE AND PROCEDURE – application to dismiss proceedings – failure to comply with direction within reasonable time – application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 42A(5)

Cases

Guse v Comcare (1967) 49 ALD 287

REASONS FOR DECISION

INTRODUCTION 

26 March 2015 

  1. The Tax Practitioner’s Board rejected Mr Mahaffy's application for renewal as a tax agent in a decision dated 11 September 2013.  The decision was to take effect on 22 October 2013, on which day Mr Mahaffy’s entitlement to practise as a registered tax agent would cease.

  2. Mr Mahaffy applied to the Tribunal to review the Board’s decision on 18 October 2013.

  3. On 21 January 2015, I heard an application by the Board for an order dismissing Mr Mahaffy's application.  I reserved my decision on this application as Mr Mahaffy was then prosecuting an appeal to the Federal Court of Australia against an earlier decision I had made in relation to a stay order issued in respect of the application before the Tribunal.

  4. On 24 March 2015, the Tribunal received a copy of the reasons given by the Federal Court for its decision to dismiss Mr Mahaffy’s appeal as being incompetent.

  5. I have decided that Mr Mahaffy's application made 18 October 2013 should be dismissed.  I provide my reasons for this decision below.

    BACKGROUND

  6. On 18 October 2013, Mr Mahaffy lodged his application to the Tribunal.  At the same time he applied for an order staying the operation of the Board’s decision.

  7. An interlocutory hearing was held on 8 January 2014 in order to hear Mr Mahaffy’s application for a stay order. At that hearing, Mr Mahaffy detailed his poor health. He also stated that he would be filing a number of forms for the issue of summons. Despite his health, and after being advised that the summons process would take about a month, Mr Mahaffy informed the Tribunal that it would take a couple of months for him to prepare his case for hearing.

  8. The Tribunal made orders staying the operation of the Board’s decision on 8 January 2014.  The effect of the stay was to allow Mr Mahaffy to continue to act for existing clients but to prevent him providing tax agent services to persons to whom he had not provided such services prior to 24 September 2013.  The stay was granted on several conditions, including the following:

    ...

    (b) on or before 29 January 2014, Mr Mahaffy files evidence in the form of a statutory declaration that he has given the Tax Practitioners Board (the Board) the names and contact…

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Details
Case
[2015] AATA 173
Decision Date

CaseChat Overview and Summary

The case of David Mahaffy and the Tax Practitioners Board involved an application by Mr Mahaffy to the Administrative Appeals Tribunal (AAT) for a review of a decision made by the Tax Practitioners Board (TPB). Mr Mahaffy applied for the proceedings to be dismissed, but this application was ultimately denied by the Tribunal. The primary legal issue before the court was whether Mr Mahaffy's failure to comply with the Tribunal’s directions within a reasonable time warranted the dismissal of his application for review. The Tribunal considered the obligations imposed by section 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth), which allows for the dismissal of an application if the applicant fails to proceed with the application or comply with Tribunal directions within a reasonable time.

The Tribunal examined the history of Mr Mahaffy's application, noting that he had been given multiple opportunities to comply with various directions, including filing requests for summons and providing submissions. Despite being informed on multiple occasions about the availability of blank summons forms and being provided with these forms, Mr Mahaffy failed to meet the deadlines set by the Tribunal. Additionally, Mr Mahaffy did not comply with other directions, such as filing a statement of submissions and reports. His application for an extension of time and adjournment was made only after he had already become non-compliant. The Tribunal concluded that Mr Mahaffy's repeated failure to comply with directions, despite ample opportunities and reminders, justified the dismissal of his application for review.

The court ruled that to allow Mr Mahaffy to continue disregarding the Tribunal's directions would not be fair to the TPB and would undermine the Tribunal's obligation to conduct proceedings in an economical and quick manner. Therefore, the application for review was dismissed in accordance with the provisions of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal's decision was based on Mr Mahaffy's persistent non-compliance with Tribunal directions, despite repeated opportunities to meet these requirements.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

I have decided that Mr Mahaffy's application made 18 October 2013 should be dismissed. I provide my reasons for this decision below.BACKGROUND On 18 October 2013, Mr Mahaffy lodged his application to the Tribunal. At the same time he applied for an order staying the operation of the Board’s decision. An interlocutory hearing was held on 8 January 2014 in order to hear Mr Mahaffy’s application for a stay order. At that hearing, Mr Mahaffy detailed his poor health. He also stated that he would be filing a number of forms for the issue of summons. Despite his health, and after being advised that the summons process would take about a month, Mr Mahaffy informed the Tribunal that it would take a couple of months for him to prepare his case for hearing. The Tribunal made orders staying the operation of the Board’s decision on 8 January 2014. The effect of the stay was to allow Mr Mahaffy to continue to act for existing clients but to prevent him providing tax agent services to persons to whom he had not provided such services prior to 24 September 2013. The stay was granted on several conditions, including the following:...(b) on or before 29 January 2014, Mr Mahaffy files evidence in the form of a statutory declaration that he has given the Tax Practitioners Board (the Board) the names and contact details of each client to whom he has provided tax agent services from 1 June 2011; and...(e) that Mr Mahaffy complies in a timely manner with tribunal listings and orders, including any timetable set for the filing of evidence and a Statement of Facts, Issues and Contentions. The Tribunal also made a number of directions. It was directed, in part, that:4. on or before 9 AM on 22 January 2014 Mr Mahaffy is to inform the Tribunal and the Respondent of summons he intends to issue and to lodge properly completed documents for this purpose; and5. a telephone preliminary conference is to be listed on the earliest convenient date after 17 January 2014; and6. the application is to be progressed to hearing with reasonable expedition and without undue delay. In accordance with the direction of 8 January 2014, the District Registrar listed a telephone preliminary conference for 22 January 2014. On 15 January 2014, Mr Mahaffy was notified of these directions and the listing of the conference. On 16 January 2014, Mr Mahaffy telephoned the Tribunal and requested an adjournment of the conference as he had to go to hospital that week. During this telephone conversation, Mr Mahaffy was reminded of the direction requiring him to file certain documents by 22 January 2014. He replied that this would not be happening. In a further telephone conversation on 20 January 2014, Mr Mahaffy was reminded by Registry staff of condition 1(b) of the stay order, requiring him to file a statutory declaration that he had given the Respondent the names and contact details of each of his clients since June 2011. He stated that he never agreed to this condition, and objected to the Tribunal instructing him on what to do.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 2A of the Administrative Appeals Tribunal Act 1975 (Cth) provides that: In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. The section imposes a statutory obligation on the Tribunal. It requires fairness to both parties as well as a mechanism of review that is both economical and quick. To allow Mr Mahaffy to continue to disregard, and consistently fail to comply with, directions of this Tribunal would not be fair to the Board. The Tribunal would also fail in its obligation to conduct proceedings in an economical and quick manner.CONCLUSION In accordance with subsection 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth), Mr Mahaffy's application for review of a decision of the Tax Practitioners Board, lodged in this Tribunal on 18 October 2013, will be dismissed.

Ratio Decidendi

Legal Principle Established

Mr Mahaffy argued that:·he has provided submissions and responded to every issue raised by the Solicitor for the Board;·the only matter which requires further attention by him is the issue of the summons to witnesses which he will file;·he has been ill and is unrepresented;·he has provided medical certificates and believed certificates had been filed recently.CONSIDERATION Subsection 42A(5) of the Administrative Appeals Tribunal Act 1975 provides: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. Mr Mahaffy was aware of the directions made on 25 November 2014. He received a copy of those directions no later than 26 November 2014 on which date he telephoned a member of the Registry staff concerning those directions. When the application for dismissal was heard on 21 January 2015, Mr Mahaffy had failed to comply with several of the directions. Mr Mahaffy had not filed any summons to produce documents by 8 December 2014. He continued to state that he intended to do so as late as the hearing on 21 January 2015. On 30 January 2015 (ie. after I heard the application for dismissal) Mr Mahaffy filed 10 forms of summons and requested that they be issued. Mr Mahaffy did not file a statement of submissions by 16 January 2015 and has not done so since. He did not file statements of evidence or reports by that date, nor did he advise the Tribunal that he did not intend to do so. He has not filed any such documents since that time. Although Mr Mahaffy applied for an extension of time to comply with the directions and for an adjournment of the hearing on 20 January 2015, he did not file a report from a medical practitioner in accordance with direction 10 made 25 November 2014. This direction was made in view of the limited medical evidence before the Tribunal as to the extent of Mr Mahaffy's incapacity. I note in this regard that Mr Mahaffy was, at the same time, seeking an order in the Federal Court which would effectively allow him to continue to work as a tax agent. Mr Mahaffy's application for an extension of time was made only after he became non-compliant. I have taken into account the history of this application and in particular that Mr Mahaffy has been given very considerable time to comply with directions to file requests for summons and to provide submissions setting out the basis for his application. He was first directed to file summons by 22 January 2014 and to file submissions by 10 June 2014. Despite the passage of a year from the time in which Mr Mahaffy was first directed to lodge summons, these had not been filed by the directions hearing on 21 January 2015. This was despite Mr Mahaffy being made aware on 8 January 2014 that blank forms of summons could be found on the Tribunal’s website, and blank forms being provided to him by Registry staff on at least two occasions in May and June 2014.