Djuric and Commissioner of Taxation (Practice and procedure) - [2025] ARTA 469

Djuric and Commissioner of Taxation (Practice and procedure) [2025] ARTA 469 (24 April 2025)
Applicant:Jovica (Joe) Djuric
Respondent:  Commissioner of Taxation
Tribunal Number:                2024/2596; 2024/4138
Tribunal:General Member J Dunne
Place:Melbourne
Date:24 April 2025
Decision:The Tribunal reinstates the above proceedings pursuant to section 102 of the Administrative Review Tribunal Act 2024 (Cth) and issues accompanying orders to the parties.

............................[SGD]..........................................
General Member J Dunne
Catchwords
PRACTICE AND PROCEDURE – Applicant failed to meet Tribunal directions within a reasonable time – Proceedings dismissed under section 100 of the Administrative Tribunal Act 2024 (Cth) – Reinstatement application under section 102 granted as “appropriate” to do so - accompanying orders – warning to Applicant
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) (repealed) s 42A
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
Administrative Review Tribunal Act 2024 (Cth), ss 9, 56, 100, 102
Taxation Administration Act 1953 (Cth) s 14ZZK
Cases
Assaf and Tax Practitioners Board [2024] ARTA 47
Bell and Deputy Commissioner of Taxation [2001] AATA 598
Buchanan v Administrative Appeals Tribunal and Commissioner of Taxation [2013] FCA 1099
Byrt and Commissioner of Taxation [2013] AATA 862
Byrt v Commissioner of Taxation [2014] AATA 30
Clinnick and Australian Securities and Investments Commission [2021] AATA 7
Crow v Federal Commissioner of Taxation 89 ATC 4,620
Cremona v Administrative Appeals Tribunal [2015] FCA 288
Morton v Federal Commissioner of Taxation [2025] FCA 336
Serpinli v Secretary, Department of Social Services [2019] FCA 2029
Somba and Minister of Home Affairs [2020] AATA 425
Secondary Materials
Australian Taxation Office, Practice Statement Law Administration PS LA 2011/4 Collection and recovery of disputed debts (17 October 2024)
Australian Taxation Office, Miscellaneous Taxation Ruling 2006/1 The New Tax System: the meaning of entity carrying on an enterprise for the purposes of entitlement to an Australian Business Number (5 February 2020)
Statement of Reasons
Issue

Mr Djuric’s (“the Applicant”) proceedings were dismissed by the Tribunal on 27 February 2025 pursuant to section 100 of the Administrative Review Tribunal Act 2024 (Cth) (“ART Act”). This is an interlocutory application by the Applicant for reinstatement pursuant to section 102 of the ART Act.
Subsection 102(7) of the ART Act provides that an application can be made for reinstatement “within 28 days after the party receives notice that the application is dismissed (or such longer period as the Tribunal, in special circumstances, allows).” The Applicant sought reinstatement by email dated 24 March 2025. This was within time.
As is set out below, I have decided, on balance (and it was a close-run matter), that the Tribunal will reinstate the proceedings. This decision is accompanied by detailed orders which are set out at the end of these Reasons.
Factual background
The following is the procedural history of these proceedings:
(a)The Applicant's applications for review were filed between 1.5 and 5 years’ late. On 28 August 2024, the Tribunal[1] accepted those Applications as in time, granting an extension of time. The Tribunal also ordered that the proceedings 2024/2596 and 2024/4138 be heard together.
[1] On 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 proceedings that were not finalised before 14 October 2024 are continued and finalised by the Administrative Review Tribunal. Anything done in relation to any such proceeding before 14 October 2024 is taken to have been done by the Administrative Review Tribunal.
(b)By direction dated 28 August 2024, the Applicant was required to file a statement of position by 30 October 2024. This was not lodged by that date. More than two months had been provided to the Applicant.
(c)The Applicant sought an extension of time long after that date expired on 15 November 2024 and the explanation provided was that the Applicant’s accountant was “not in a position to facilitate documentation”. The Tribunal considered this an inadequate explanation.
(d)By Tribunal direction dated 27 November 2024, the Applicant was given until 6 December 2024 to lodge a statement of position by the Tribunal. The Applicant was warned by the Tribunal about the need to meet timeframes as directed, or risk dismissal.
(e)The Applicant lodged a document said to be a “statement of position” on 6 December 2024. That document failed to set out relevant contentions of law, particularly "an explanation as to why the Applicant says the assessments at issue are excessive or otherwise incorrect" as required by the Tribunal's direction.
(f)By a direction dated 13 December 2024 the Tribunal gave the Applicant a further opportunity to fix its filings. It directed the Applicant to provide a Statement of Facts, Issues and Contentions ("SFIC") that was compliant with Part 7 of the Common Procedure Practice Direction 2024 by 17 February 2025. More than two months were given to the Applicant. The Applicant was again warned by the Tribunal about the need to file this document on time and that failure to do so could result in dismissal.
(g)The Applicant did not file its SFIC by 17 February 2025 and the timeframe passed without the Applicant approaching the Tribunal.
(h)On 27 February 2025, the Tribunal sought an explanation from the Applicant. It became clear that the Applicant did not understand what a SFIC was.[2] The Tribunal’s directions gave the Applicant the details of what needed to be filed and by when. In the two months that had passed the Applicant had asked no questions and had done nothing. The Applicant had been warned twice about the need to comply with directions on time. The proceedings were dismissed under section 100 of the ART Act as a result.
(i)By email dated 24 March 2025, the Applicant sought reinstatement of the proceedings pursuant to section 102 of the ART Act. Attached to that email was the “statement of position” and a document that purported to be the Applicant’s SFIC (this is referred to as “Applicant’s SFIC” in this decision but is not accepted as compliant with Part 7 of the Common Procedure Practice Direction 2024). None of the Applicant’s material engaged with section 102 of the ART Act outlining why it would be appropriate to reinstate the application other than a vague submission that “natural justice” required it. The Applicant’s SFIC did not engage with the substantive tax law, so it was not compliant with Part 7 of the Common Procedure Practice Direction 2024.[3]
In terms of the “natural justice” submission. there has not been any breach of natural justice in the dismissal of the Applicant’s proceedings. The Tribunal issued standard directions to ensure the Applicant’s case was properly put for response by the Commissioner, and when the directions were not met, the Tribunal called on the Applicant for an explanation and heard from the Applicant and the Commissioner before coming to a decision.
The Tribunal has taken the Applicant’s submission as being to the effect that it is in the interests of justice for his substantive case to be heard and this is what was meant.
(j)Neither the Tribunal nor the Applicant had the Commissioner’s Submissions Opposing Reinstatement dated 10 April 2025 (“Commissioner’s Submissions”). at the interlocutory hearing of the reinstatement application on 11 April 2025 (despite those submissions having been filed). I reserved my decision to provide the Applicant the opportunity to make submissions in reply to the Commissioner’s Submissions, and the Commissioner was given the opportunity to reply to any reply submissions filed by the Applicant.
[2] In the matters filed prior to the interlocutory hearing before the Tribunal, this lack of understanding continued – see footnote 35 below. A SFIC is not a reformatting of the Applicant’s existing filings.
[3] The Tribunal advised the Applicant that his income tax case revolved around whether the disposal of property was a mere realisation of a capital asset or whether the Applicant was carrying on a property development business. There is a raft of case law on this question which has not been engaged with, including a very recent case before the Federal Court Morton v Federal Commissioner of Taxation [2025] FCA 336. There is also a raft of GST case law. The Commissioner has also issued relevant guidance (for example, Miscellaneous Taxation Ruling 2006/1 The New Tax System: The meaning of entity carrying on an enterprise for the purposes of entitlement to an Australian Business Number). None of this has been engaged with by the Applicant.
In summary, the procedural history gives rise to concern about the Applicant’s compliance with Tribunal orders. In addition, there are questions about his ability to properly progress these proceedings. Proper engagement with the law is required to make this case meritorious, and the Applicant has consistently failed to engage with the law, despite being represented. The Applicant’s SFIC which accompanied the reinstatement application did not meet the Tribunal’s 13 December 2024 directions. The Commissioner is strongly against reinstatement, while the Applicant is in favour of reinstatement.
Submissions
The Commissioner’s Submissions oppose reinstatement. The main reasons for this are the procedural history,[4] there being no real reason for the Applicant’s non-compliance,[5] potential prejudice to the Commissioner in relation to the recovery of tax,[6] and the lack of articulated merit to the Applicant’s case.[7]
[4] Commissioner’s Submissions [4]-[14].
[5] Ibid [18].
[6] Ibid [19].
[7] Ibid [20]-[21].
The Applicant’s submissions in reply were filed on 15 April 2025 (“Applicant’s Reply Submissions”). The Applicant’s Reply Submissions engaged properly with the issues before the Tribunal when considering the application for reinstatement. The Applicant says the proceedings should be reinstated because he has good prospects of success on the merits of the case,[8] there is prejudice to the Applicant,[9] the Commissioner’s prejudice can be alleviated by the imposition of the general interest charge,[10] and because of assurances about future compliance before the Tribunal including being prepared to engage counsel.[11] The Applicant also says that the time spent in objection, audit and applying to the Tribunal is not relevant to the reinstatement application.[12]
[8] Applicant’s Reply Submissions [6]-[9].
[9] Ibid [13]-[15].
[10] Ibid [10]-[12]
[11] Ibid [17]-[18].
[12] Ibid [16].
As the Commissioner noted in the Commissioner’s Reply Submissions Opposing Reinstatement dated 17 April 2025 (“Commissioner’s Reply Submissions”), two versions of the Applicant’s Reply Submissions were filed, and the distinction related to the engagement of counsel by the Applicant. This issue is considered below. The Tribunal considered the second version of the Applicant’s Reply Submissions as being the correct version.
The Commissioner’s Reply Submissions submit that:
(a)Paragraphs [7]-[9] of the Applicant’s Reply Submissions would properly be dealt with in a SFIC which the Applicant was directed to file and failed to do so.[13] There is no explanation for that failure.[14]
(b)The inexperience of the Applicant’s representation is not a factor in favour of reinstatement.[15]
(c)The engagement of tax counsel was always available to the Applicant – it is noted that the Applicant’s Reply Submissions were filed in two versions which at first suggested counsel was engaged, and then was not, but was an option. No undertaking to engage counsel was given by the Applicant so the Commissioner submitted that the Tribunal cannot be satisfied that the case would be properly progressed.[16]
(d)The procedural history of this case is relevant as demonstrating the Applicant’s failure to progress his case.[17] The Tribunal cannot be satisfied that the Applicant will meet his obligations to the Tribunal under section 56 of the ART Act.[18]
[13] Commissioner’s Reply Submissions [4].
[14] Ibid [13].
[15] Ibid [7].
[16] Ibid [6]-[7].
[17] Ibid [9]-[10].
[18] Ibid [10].
Legal analysis
Subsection 102(9) of the ART Act sets out the Tribunal’s discretion to reinstate proceedings on application by the Applicant where the proceedings have been dismissed under section 100. That provision reads as follows:
(9) If a party applies under subsection (7) [which includes a dismissal under section 100] and the Tribunal considers it appropriate to reinstate the application, the Tribunal may reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.
The question is when reinstatement is “appropriate” and whether the reinstatement application from the Applicant demonstrates it is “appropriate.” Under subsection 42A(9) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) the Administrative Appeals Tribunal had a similar power,[19] and the cases in relation to that power are also relevant.
[19] Subsection 42A(9) of the AAT Act “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”.
The following principles arise from the case law:
(a)In Assaf and Tax Practitioners Board[20] the Tribunal did not reinstate proceedings under section 102 of the ART Act where the reinstatement application was made late, and it was held there were no special circumstances substantiating the allowance of further time for that reinstatement application. Those factors are not relevant in the current case. The Tribunal noted in Assaf that when considering whether reinstatement was ‘appropriate’ the merits of the application are a matter to consider, and, particularly where the application was dismissed for non-attendance, the reasons for dismissal are relevant.
(b)In Bell and Deputy Commissioner of Taxation[21] orders at directions hearings had not been complied with and that was the reason for the dismissal of the proceedings. The failure to comply with directions was disputed on the basis that the taxpayers were unaware of those directions. The taxpayers maintained that their then agent had not advised them of those directions. The taxpayers also alleged there were errors in the Administrative Appeals Tribunal’s directions. Extensive sworn evidence was given at the interlocutory hearing of the reinstatement application under section 42A of the AAT Act. That sworn evidence was not accepted by the Administrative Appeals Tribunal and the proceedings were not reinstated.
The Commissioner’s Submissions assert that Bell stands for the proposition that delays in tax recovery are a relevant factor when considering whether it is appropriate to reinstate the application.[22] Prejudice to the Commissioner (including the inability to collect tax) was considered a relevant factor in Bell.[23] However, it is clear that the major factor motivating the conclusion in Bell not to reinstate the taxpayers’ proceedings was the Administrative Appeals Tribunal’s view of the credibility of the sworn evidence and of the taxpayers’ excuses for failing to comply with the Administrative Appeals Tribunal’s directions.[24] These are not factors in the present case.
(c)In Buchanan v Administrative Appeals Tribunal and Commissioner of Taxation[25] a reinstatement application was not granted by the Administrative Appeals Tribunal and this decision was appealed to the Federal Court. The proceedings had been dismissed because of the taxpayer’s failure to appear. The Federal Court dismissed the appeal as not identifying relevant questions of law. The Court also held that relevant considerations when considering reinstatement included the explanation for failure to appear, possible prejudice to the parties, and the merits of the taxpayer’s substantive case.[26]
(d)In Cremona v Administrative Appeals Tribunal[27] there was an appeal to the Federal Court from the Administrative Appeals Tribunal’s refusal to grant a reinstatement application. Similarly to Buchanan, the Tribunal dismissed the proceedings for failure to appear. Factors considered by the Administrative Appeals Tribunal included the reason for the failure to appear, the merits of the taxpayer’s substantive case, and prejudice to the parties. Those factors were confirmed by the Federal Court as relevant matters when determining whether to exercise the discretion to reinstate.[28]
(e)In Clinnick and Australian Securities and Investments Commission[29] the taxpayer withdrew his proceedings because of his illness. He was not given the option of seeking an adjournment by his lawyer and was given other incorrect advice relating to costs orders in the Administrative Appeals Tribunal. The Administrative Appeals Tribunal was taken to have dismissed the proceedings under subsection 42A(1B) of the AAT Act. The Administrative Appeals Tribunal refused an application for reinstatement on the basis of the lawyer’s errors, as the evidence suggested that the taxpayer had determined to withdraw the proceedings prior to the lawyer’s advice. The Tribunal confirmed that the explanation for the withdrawal, the merits of the case (at a superficial level). and the question of prejudice to the parties are relevant factors when considering a reinstatement.[30]
(f)In Somba and Minister of Home Affairs[31] an application for reinstatement was refused following proceedings being dismissed for failure to appear. The Administrative Appeals Tribunal considered that the explanation for the failure to appear, the conduct of the proceedings, any prejudice to the parties, the merits of the substantive case and the public interest were relevant considerations.[32]
(g)In Serpinli v Secretary, Department of Social Services[33] there was an appeal to the Federal Court from the Administrative Appeals Tribunal’s refusal to grant a reinstatement application. The Administrative Appeals Tribunal dismissed the proceedings for a failure to appear. The Court held the factors to consider when determining whether it was appropriate to reinstate the proceedings could differ from case to case, but the merits of the substantive application, and the explanation for a failure to appear (particularly if that was the cause of the dismissal of the proceedings) were relevant factors to consider. The Court dismissed the appeal.
[20] [2024] ARTA 47.
[21] [2001] AATA 598.
[22] Commissioner’s Submissions [17] .
[23] [2001] AATA 598 [175]-[177], [181], [197].
[24] Ibid [179], [182], [197], [206].
[25] [2013] FCA 1099.
[26] Ibid [41]-[42].
[27] [2015] FCA 288.
[28] Ibid [32].
[29] [2021] AATA 7.
[30] Ibid [19]-[26] – although in context these factors related to the Tribunal’s consideration of an extension of time application, they are referred to as relevant to reinstatement as well at [15].
[31] [2020] AATA 425.
[32] Ibid [35], [36]-[89].
[33] [2019] FCA 2029.
Analysis and reasons
Considering the factors from the case law:
(a)Explanation for the issue that resulted in dismissal - From a review of the case law, this factor has particular significance in cases involving a failure to appear being the cause of the dismissal of the proceedings. It is nonetheless relevant.
Here, the reason for dismissal was a failure to comply with the Tribunal’s directions when given plenty of time to do so and when no questions were asked of the Tribunal by the Applicant to clarify any aspect of the directions. Exacerbating that, was the previous failure to meet directions, and the very clear warnings given to Mr Rodriguez by the Tribunal. Concern also arose as what has been filed to date by the Applicant fails to engage with the matter at issue in the proceedings. That suggested an inability to properly progress the proceedings. This also made it difficult for the Commissioner to be able to appreciate what it had to respond to.
Unlike the circumstances in Bell and Deputy Commissioner of Taxation,[34] there is no dispute from the Applicant as to the failure to meet the Tribunal’s directions. In Bell, the Tribunal did not accept the taxpayers’ evidence that they were unaware of the directions and the Tribunal did not accept the taxpayers’ submissions challenging the directions at issue. The taxpayers sought to excuse their actions. The bulk of Bell revolves around that evidence, and it clearly influenced the Tribunal’s decision in that case.
[34] [2001] AATA 598.
In this case, while Mr Rodriguez is representing the Applicant, he candidly acknowledged at the interlocutory hearing that he has no Tribunal experience and the issue which led to dismissal was entirely his responsibility as he had misunderstood what was required.[35] He was apologetic and concerned about his client. These submissions were to Mr Rodriguez’s credit. The Tribunal’s impression was that Mr Rodriguez is not a specialist litigator, not a tax specialist, and he did not understand what was expected of him before the Tribunal. The filings by Mr Rodriguez further demonstrate that lack of experience. The Tribunal is intended to be an accessible forum including for the inexperienced or those who represent themselves. It is intended there be as little formality in the Tribunal as required to properly hear the case.[36]
[35] Applicant’s Reply Submissions [16]-[17]. Mr Rodriguez’s submissions at the interlocutory hearing which were to the effect that the purported SFIC he filed with his application for reinstatement was a mere “reformatting” of existing material further demonstrated that lack of understanding. I accept the Commissioner’s Reply Submissions [4] on this point.
[36] Section 9 of the ART Act.
The Commissioner’s Reply Submissions refer to Byrt v Commissioner of Taxation[37] for the proposition that inadequate or inexperienced representation can still give rise to grounds for dismissal.[38] While that is a correct summation of the one-page reinstatement decision in that matter, it ignores the reality of the extent of non-compliance in Byrt. As was recorded in the dismissal decision,[39] the non-compliance was at the extreme end. The taxpayer in Byrt did not meet directions, failed to appear on several occasions, gave the clear impression he did not intend to comply at any stage, was (after dismissing representation) representing himself, and sought an (effectively) indefinite delay for reasons relating to unexplained “other proceedings.” This suggested to the Administrative Appeals Tribunal that the taxpayer in Byrt had no real interest in progressing the proceedings. In my view, the non-compliance in the present case is serious, but not at the extreme end as was the case in Byrt. Further, from the facts of this matter, I do not think that the Applicant in this case lacks a genuine interest in pursuing the proceedings.
[37] [2014] AATA 30.
[38] Commissioner’s Reply Submissions [8].
[39] Byrt and Commissioner of Taxation [2013] AATA 862.
I do not accept this factor is in favour of reinstatement, as the reason for non-compliance does not outweigh the Applicant’s failure to do anything (even ask any questions) for months after a prior failure and two clear warnings from the Tribunal. However, I do not think this factor is clearly against reinstatement either due to the Tribunal’s objectives as set out in the ART Act.
On balance, I assess this factor as neutral in terms of reinstatement.
(b)Merits of the substantive case – This is difficult to determine because of the inadequate filings by the Applicant. I accept the Commissioner’s Submissions that without a properly articulated SFIC there can be no meaningful assessment of the merits of the Applicant’s case.[40] At a high level, the submissions made to date by the Applicant are at best weak and at worst irrelevant.[41] When assessing the merits, this makes the Tribunal’s task difficult. However, as was noted in Clinnick and Australian Securities and Investments Commission[42] the merits assessment does not need to be meaningful and is “necessarily superficial.”
[40] Commissioner’s Submissions [20].
[41] For example, whether the Applicant claimed GST input credits and whether the Applicant carried out activities in his personal name rather than through a corporate or trust entity are not determinative of the legal questions in these proceedings. See Applicant’s SFIC [11] - [12], [15] and page 3.
[42] [2021] AATA 7, [26].
The substance of the Applicant’s case is to the effect that the reasons which motivated the sale of the relevant properties were not business-related, even if a business is found to exist which is also disputed. Rather, the Applicant says the purpose was to raise funds because of a marital split. There is case law that supports the view that the motivating factors for the sale of property may be relevant when determining if the sale is in the nature of a business transaction, depending of course on the overall circumstances.[43] There is also a raft of other relevant case law, guidance and other material the Applicant could consider both in the income tax and GST contexts when determining the question of whether the Applicant is in a property development business.[44] The Applicant’s Reply Submissions give very limited structure as to the merits of the Applicant’s case.[45] The Commissioner’s filings to date suggest the Applicant will have an evidential task to meet his burden of proof.
A merits assessment is difficult in these circumstances, but at a high level, it cannot be said that the Applicant’s case has no or very limited prospects of success.
On balance, the Tribunal’s assessment is this factor is very marginally in favour of reinstatement.
(c)Prejudice – the next question is whether there is prejudice to the parties. If the Applicant’s case was not reinstated there would be prejudice to him in not being able to have his case heard. The Commissioner acknowledges that in the normal course the Commissioner is not prejudiced as the burden of proof is on the Applicant in proceedings before the Tribunal.[46] However, the Commissioner submits there is prejudice to it from not commencing recovery action, because the Applicant’s capacity to pay has potentially eroded over time.[47]
The Tribunal is bemused by the Commissioner’s submission. While of course the revenue base is a relevant factor when considering prejudice and the Tribunal has considered that, it seems to the Tribunal that the Commissioner’s failure to act is the main contributing factor resulting in the claimed prejudice. The Commissioner can take recovery action when proceedings are filed and its policy is to do so where there is a risk to the revenue (which seems to be what the Commissioner is claiming is “potentially” the case).[48] Factors such as the age of the debt, the nature of the proceedings and whether “the objecting taxpayer [has acted] inconsistently with the proper and timely advancement of the dispute” are relevant considerations to the Commissioner’s risk assessment.[49] The Commissioner has an array of available powers.
The Applicant’s Reply Submissions take the view that the general interest charge alleviates the prejudice to the Commissioner.[50] The Applicant’s Reply Submissions do not meet the Commissioner’s point about the collection risk to the revenue base in my view. But nor am I convinced by the Commissioner’s submission in the first place.
The Tribunal has concluded this factor is in favour of reinstatement, as the substantive prejudice is to the Applicant.
(d)Public interest – On this factor, there are competing issues. There is a public interest in the Tribunal being able to meet its objectives. Those objectives include the prompt resolution of issues in dispute.[51] The Applicant’s failures to meet the Tribunal’s ordered timetable undermine that objective. Another objective is for the Tribunal to be “fair and just”.[52] It is not fair nor just for one party to meet its obligations (the Commissioner) while the other party (the Applicant) has repeatedly failed to do so. In addition, the Tribunal expects its directions to be respected, and they have not been. Disrespecting the Tribunal by not meeting orders or directions without a substantive reason is taken very seriously.
However, there is also a public interest in disputes being able to be heard before the Tribunal. I am cognisant of the concerns in this case being also to some degree about the nature of the filings made by the Applicant to date and the Applicant’s understanding of the Tribunal processes in circumstances of inexperience before the Tribunal. The Tribunal’s objectives also include there being as little formality and expense as possible for the case to be properly heard and the Tribunal being accessible to parties of diverse needs.[53]
I have concluded that this factor is neutral when considering reinstatement.
[43] Crow v FC of T 89 ATC 4,620, 4,625.
[44] See footnote 3 above.
[45] Applicant’s Reply Submissions [5]-[9].
[46] Section 14ZZK of the Taxation Administration Act 1953 (Cth).
[47] Commissioner’s Submissions [19].
[48] Australian Taxation Office, Practice Statement Law Administration PS LA 2011/4 Collection and recovery of disputed debts (“PS LA 2011/4”) [9].
[49] PS LA 2011/4 [18], [21].
[50] Applicant’s Reply Submissions [12].
[51] Subsection 9(b) of the ART Act.
[52] Subsection 9(a) of the ART Act.
[53] Subsections 9(b) and 9(c) of the ART Act.

I have made my decision to reinstate these proceedings based on a balancing of the factors established by case law as set out above. As is demonstrated by that analysis, it was a close-run decision as opposed to being clear cut, and the Applicant has been given some benefit of the doubt.
I also specifically note that I have taken into account the following matters when coming to my decision:
(a)Engagement of a tax barrister - At the interlocutory hearing the Applicant gave the Tribunal an assurance (via Mr Rodriguez) that a barrister with tax and Tribunal experience could be engaged from this point forward and the Tribunal could have confidence the case would be properly put. The Tribunal has taken the submission at the interlocutory hearing and in the Applicant’s Reply Submissions seriously. It has given the Applicant the benefit of the doubt on this point, and assumed a tax specialist (be that a barrister, lawyer or tax agent) will be engaged. This is an important factor taken into account by the Tribunal when reaching its decision in this matter.
The Commissioner noted[54] there was no undertaking from the Applicant to brief a tax barrister at the interlocutory hearing. This is a good point, and the Tribunal feels that in hindsight it perhaps ought to have sought an undertaking from the Applicant at the interlocutory hearing. Nevertheless, the Tribunal must make a decision on what it has.
The Tribunal notes the suggestion in the Applicant’s Reply Submissions is that a tax barrister could be engaged only for the purposes of preparing the SFIC and evidence.[55] Engaging a tax specialist to prepare a SFIC and evidence is the bare minimum. The Tribunal comments that while of course representation is a decision for the Applicant, given the history to date, if the case is not conducted by a tax agent, tax lawyer, or tax barrister with Tribunal experience, non-compliance may arise again, and the Applicant may risk a future dismissal.
(b)Accompanying orders - The ability of the Tribunal to issue orders under section 102 of the ART Act to accompany this decision. The Tribunal has issued orders at the end of this decision which are designed to give the Applicant a final chance to put its case properly and in a timely fashion. The Commissioner’s concerns about the timely advancement of this matter are valid and taken into consideration when issuing those orders. For the avoidance of doubt, the Applicant’s suggestion of 30 May 2025 for accompanying orders is rejected by the Tribunal.[56] The Applicant has been given plenty of time (literally months) in prior orders which he failed to meet. It is time for the Applicant to properly put and progress his case, and he must do so promptly.
(c)Not revisiting the extension of time decision - The Commissioner’s concerns are, in my assessment, to some degree related to the age of these matters.[57] That factor is not relevant to my reinstatement decision as I am not in these proceedings able to revisit the extension of time decision granted by the Tribunal on 28 August 2024. On this point, I agree with aspects of the Applicant’s Reply Submissions at [16]. I acknowledge and agree with the Commissioner that the factual history is relevant,[58] but the Commissioner’s Submissions seemed very concerned about the age of the matters in dispute, using that age for emphasis.[59] The age of the matters is only relevant in a substantive way to the Tribunal’s earlier extension of time decision.
(d)Power of future dismissal - If the pattern to date was repeated by the Applicant, this matter would likely be dismissed again forthwith pursuant to section 100 of the ART Act.
[54] Commissioner’s Reply Submissions [6]-[7]. The Applicant’s Reply Submissions at [18] “The Taxpayer is prepared to brief an appropriate Counsel with specialist tax experience if needed.” It is needed.
[55] Applicant’s Reply Submissions [18].
[56] Applicant’s Reply Submissions [20].
[57] Commissioner’s Submissions [4],-[8], [18].
[58] Commissioner’s Reply Submissions [9]-[10].
[59] Commissioner’s Submissions [18] “almost 8 years ago” [19] “close to a decade.”
Conclusion and Orders
I have decided that, on balance, it is appropriate for the Applicant’s proceedings to be reinstated under section 102 of the ART Act.
That decision under section 102 of the ART Act is accompanied by the following orders:
(a)Within 21 days of 28 April 2025 (that is, no later than 5pm 19 May 2025), the Applicant must file the following with the Tribunal and copy the Commissioner:
(i)a SFIC that is fully compliant with Part 7 of the Common Procedure Practice Direction 2024, and properly engages with the law for both the income tax and GST proceedings; and
(ii)any witness statements and other the evidence upon which he intends to rely (if that evidence is not already in the T documents or already before the Tribunal).
(b)Within 3 days of the date that the Applicant meets the order at paragraph ‎17(a), the parties are required to lodge with the Tribunal and serve on each other a Hearing Certificate identifying availability for a hearing in August, September or October 2025.
(c)Within 21 days of the Hearing Certificates being lodged with Tribunal in accordance with the order at paragraph ‎17(b) above, the Commissioner must file a SFIC compliant with Part 7 of the Common Practice Direction 2024 and lodge all evidence (including witness statements) upon which it intends to rely (if that evidence is not already in the T documents).
The parties are also advised that a case management directions hearing by telephone will be scheduled shortly after the orders in paragraph ‎17 are met to timetable all remaining matters.
The Applicant is advised that if he does not meet the Tribunal’s orders these proceedings may be liable to dismissal under section 100 of the ART Act and a non-compliance hearing will be scheduled.

1.

2. I certify that the preceding 19 (nine-teen) paragraphs are a true copy of the reasons for the interlocutory decision herein of General Member J. Dunne

……………………[SGD]…………………………….
Associate
Dated: 24 April 2025

Date of interlocutory hearing:

11 April 2025

Advocate for the Applicant:

Solicitors for the Applicant:

Advocate for the Respondent:

Michael Rodriguez

MTP Law Pty Ltd

Preesan Pillay, Vivienne Sasse

Solicitors for the Respondent: Australian Taxation Office, Litigation and Legal Services