DFYN and Commissioner of Taxation (Taxation)

The Administrative Appeals Tribunal (AAT) considered an application for reinstatement of proceedings that had been dismissed under section 42A(5) of the relevant legislation. The applicant, DFYN, sought to have the proceedings revived, while the Commissioner of Taxation did not oppose the application, acknowledging that new information might explain the taxpayer's prior conduct.

The central legal issue before the Tribunal was whether it possessed the power to reinstate proceedings dismissed under section 42A(5) of the *Administrative Appeals Tribunal Act 1975* (Cth) (or equivalent provision). Specifically, the Tribunal had to determine if the power to reinstate under section 42A(9) was applicable to dismissals under section 42A(5), or if the only avenue for revival was through section 42A(10), which allows reinstatement where proceedings were dismissed in error.

Deputy President Bernard J McCabe P reasoned that the reinstatement power under section 42A(9) is specifically designed for situations where an applicant fails to appear, as contemplated by section 42A(2), and is not available for dismissals under section 42A(5). The Tribunal found that the applicant had been accorded procedural fairness prior to the dismissal under section 42A(5), which occurred due to repeated non-compliance with Tribunal directions and a failure to file required material by the stipulated deadlines, including a "guillotine" order. While the Tribunal acknowledged the applicant's circumstances might be understandable, it concluded that this non-compliance did not constitute an "error" in the sense required by section 42A(10) to permit reinstatement.

Consequently, the Tribunal held that it lacked the power to reinstate the proceedings and therefore refused the application. The Tribunal noted that the applicant might have the option to make a fresh application for review.