Evans and Tax Practitioners Board (Taxation)
[2019] AATA 1408
•19 June 2019
Evans and Tax Practitioners Board (Taxation) [2019] AATA 1408 (19 June 2019)
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2019/2915
Re:Neil Evans
APPLICANT
AndTax Practitioners Board
RESPONDENT
DECISION
Tribunal:Chris Furnell, Senior Member
Date:19 June 2019
Place:Melbourne
The Tribunal refuses the applicant's request under s 41(2) of the Administrative Appeals Tribunal Act 1975 for an order staying or otherwise affecting the operation or implementation of the decision to which this review proceeding relates.
.........[sgd]...............................................................
Chris Furnell, Senior Member
Catchwords
PRACTICE AND PROCEDURE – application for stay of decision under s 41(2) of the Administrative Appeals Tribunal Act 1975 – tax practitioners board – prospects of success – consequences for applicant – consequences for respondent – public interest - whether substantive application would be rendered nugatory if stay order were not granted - application refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Corporations Act 2001 (Cth)
Crimes Act 1958 (Vic)
Tax Agent Services Act 2009 (Cth)
Tax Agents Services Regulations 2009 (Cth)Cases
Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130
Beckett and Tax Practitioner’s Board [2018] AATA 1860
Cheng Li and Tax Practitioners Board [2013] AATA 669
Clyne v New South Wales Bar Association (1960) 104 CLR 186
G J Brown & Co Pty Ltd and Tax Practitioners Board [2016] AATA 740
Gould and Tax Practitioners Board [2019] AATA 1056
Dadwal and Tax Practitioners Board [2018] AATA 2878
Hill and Tax Practitioners Board (Taxation) [2019] AATA 756
Hughes & Vale Pty Ltd v NSW (No 2) (1955) 93 CLR 127
Kadeh and Migration Agents Registration Authority (Migration) [2018] AATA 4461
Legal Practitioners Complaints Committee v Pepe [2009] WASC 39
Legal Practitioners Conduct Board v Nicholson [2006] SASC 21
Levi v Companies Auditors and Liquidators Disciplinary Board [2013] FCA 719
Re Mahaffy and Tax Practitioners Board [2014] AATA 17
Medical Board of Australia v Patel [2015] QCAT 133
Medical Practitioners Board of Victoria v McGoldrick [1999] VSCA 215
Poidevin and Australian Securities and Investments Commission [2018] AATA 124
Re Scott and Australian Securities and Investments Commission [2009] AATA 798
Re Snook and Civil Aviation Safety Authority (2008) 109 ALD 122
Stasos v Tax Agents Board (1990) 21 ALD 437
The Law Society of SA v Rodda [2002] SASC 274
Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448
Zarfati and Australian Securities and Investments Commission [2008] AATA 989REASONS FOR DECISION
Chris Furnell, Senior Member
19 June 2019
On 18 April 2019, the respondent Board decided to terminate Mr Evans registration as a tax (financial) adviser with effect from 31 May 2019.
Mr Evans was notified of the Board’s decision in a letter dated 2 May 2019.
On 27 May 2019, Mr Evans applied to the Tribunal for review of that decision.
In addition, Mr Evans also requested that the Tribunal make an order staying the Board’s decision pending the hearing and determination of his application for review of that decision.[1]
[1] On 28 May 2019 the Tribunal made an interim stay order with respect to the board’s decision, the stay being effective until the earlier of 6 June 2019 and further order of the Tribunal, if any.
It is that request which is the subject of this decision.
Hence, the question in issue is whether the Tribunal should make the requested order.
I have concluded that it should not, for the reasons which follow,
Before delving into those reasons, however, something should be said about the power of the Tribunal to make a stay order and the considerations to be taken into account in exercise of the power.
STAY ORDER POWER
Under s 41(2) of the Administrative Appeals Tribunal Act1975 (Cth), the Tribunal has power to grant Mr Evans’ request for a stay order if it:
(a)is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the Tribunal’s review of the Board’s decision; and
(b)considers that the stay order is appropriate for the purpose of securing the effectiveness of the hearing and determination of Mr Evans application for that review.
Hence, in addressing Mr Evans’ request for a stay order, the Tribunal must consider:
(a)the interests of persons who may be affected by the Tribunal’s review of the Board’s decision;
(b)the impact, if any, the making of the requested stay order would have on the effectiveness of the hearing and determination of the Tribunal’s review of that decision.
These mandatory considerations are not exhaustive. Other, inter-related, considerations are often taken into account in relation to stay order requests.
Those other considerations include:
(a)the prospects of success of the substantive application for review;
(b)the consequences for the applicant should the request be refused;
(c)the public interest;
(d)the consequences for the respondent in carrying out its functions should the request for the stay order be granted or refused;
(e)whether the substantive application for review would be rendered nugatory if the request for a stay order were not granted; and
(f)other relevant matters.[2]
[2] Re Scott and Australian Securities and Investments Commission [2009] AATA 798; (2009) 51 AAR 114 at [4]; Cheng Li and Tax Practitioners Board [2013] AATA 669 at [6]; Poidevin and Australian Securities and Investments Commission [2018] AATA 124; Gould and Tax Practitioners Board [2019] AATA 1056 at [7].
In determining what, if anything, is established in relation to these mandatory and other considerations, I take the view that, while not having an onus of proof (given that the Tribunal is being requested to make an administrative decision requiring that it be of a particular opinion),[3] Mr Evans does bear an evidentiary burden. Satisfaction of that burden requires that he provide the Tribunal with sufficient evidentiary material to enable it to exercise its discretion in accordance with law.[4] Put more succinctly, he has “a practical onus of establishing on the evidence that those considerations point to the grant of a stay”.[5]
[3] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [54] where it was stated that “…The word “satisfied” in that context is not amenable to the application of an evidentiary burden of proof, such as balance of probabilities. That is for at least two reasons. First, the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof inapposite…. Second, the matter… is not a fact to be proved but an opinion requiring an evaluative judgment. A standard of proof, such as balance of probabilities, is incapable of application to such an opinion”.
[4] McDonald v Director-General of Social Security (1984) 6 ALD 6.
[5] XTWK and Australian Securities and Investments Commission (2007) 98 ALD 131 at [13].
CONDUCT OF MR EVANS
Several of the considerations to be taken into account in deciding upon Mr Evans’ request for a stay order require an evaluation of his conduct.
An important point to be borne in mind is that this evaluation occurs at a very early stage of the proceeding. Absent the evidence and submissions that the parties might ultimately seek to adduce and make at the substantive hearing of Mr Evans’ application for review, any factual findings or legal conclusions now made or arrived at with respect to that conduct can only be preliminary.
The evaluation of Mr Evans’ conduct occurs in the context of three discrete but related sets of circumstances.
The first set of circumstances concerns the election in November 2015 of two directors to the board of WAW Credit Union Co-Operative Limited (WAW).
According to a summary of facts dated 13 February 2018, to which Mr Evans is said to have agreed (agreed facts), “between 4 November 2015 and 18 November 2015, Mr Evans utilised a computer to lodge electronic ballots in the names of not less than 499 WAW shareholders who were eligible to vote, but who had never authorised Mr Evans to vote on their behalf”. Indeed, “Mr Evans had not sought or obtained any authority to vote on behalf of any of the” relevant shareholders.
In so doing, Mr Evans contravened s 247C of the Crimes Act 1958 (Vic) (Crimes Act), a contravention in respect of which he was charged and to which, on 5 July 2018, he pleaded guilty.
No conviction was recorded in relation to the charge. Mr Evans was, however, placed on a 12 month good behaviour bond conditional upon him paying $12,000 into the court fund and prohibiting him from providing financial advice to WAW customers for the duration of the bond.
On the material before me I find that Mr Evans’ conduct in relation to this first set of circumstances to have been dishonest.
By casting each relevant ballot he was implicitly (or, depending on the terms of the ballot material, perhaps even expressly) representing that he was either the relevant shareholder or that he had the relevant shareholder’s authorisation to do so. Having not even sought any such authorisation from any of the not less than 499 relevant shareholders in WAW, Mr Evans would have appreciated that the representation he was making was untrue.
The second set of relevant circumstances concerns an investigation by the Australian Securities and Investments Commission (ASIC) into the WAW board election.
According to the agreed facts, on 23 February 2017, in the context of that investigation, Mr Evans gave evidence on oath. The effect of that evidence was that all the votes that he had cast during the election were cast on behalf of his clients and with their authority.
That evidence was untrue.
As previously stated, and as outlined in the agreed facts, Mr Evans had not, in fact, sought or obtained any authority to cast the relevant votes.
Indeed, on 4 August 2017 and according to the agreed facts, when examined on oath again (this time apparently in the context of an ASIC proposal to make a banning order against Mr Evans[6]), “Mr Evans admitted that he had cast votes on behalf of WAW shareholders who were not his clients and without their authorisation”.
[6] See 23(a) of exhibit NJE-4 to Mr Evans’ affidavit of 27 May 2019.
In relation to this second set of circumstances, the Board submitted that Mr Evans’ had lied when providing evidence to ASIC in February 2017. On behalf of Mr Evans, however, it was submitted that such a characterisation of his conduct was inappropriate given that ASIC had not made any findings against Mr Evans; nor had he been charged with any offence with respect to that evidence.
Mr Evans also deposed that he had given an explanation for the differences in the evidence he had provided to ASIC. On the material before me, however, I was unable to locate any such explanation.
In a letter to the Board from Mr Evans’ solicitors[7] I note that it was asserted that a careful consideration of the transcript of Mr Evans’ evidence at the examinations conducted by ASIC “does not identify or establish that he gave false evidence”. At the hearing of his request for a stay order this assertion was not substantiated.
[7] See exhibit NJE-6 to Mr Evans’ affidavit of 27 May 2019.
On the material before me I find that Mr Evans’ conduct in relation to this second set of circumstances to have been dishonest.
The decisions ASIC may or may not have made with respect to the evidence provided by Mr Evans are not inconsistent with such a finding, given the array of considerations that lie behind regulatory decision-making.
In any event, and as is apparent from comments I make later, ASIC clearly decided to issue a banning order with respect to Mr Evans. That decision was, according to his counsel, made in reliance on the same facts as were as were the subject of the Board’s focus, facts which, therefore, would have included those concerning the evidence provided by Mr Evans to ASIC.
The third set of relevant circumstances concerns documents Mr Evans lodged or caused to be lodged with the Board.
On 12 July 2017 (i.e., after the WAW board election in November 2015 and after having first provided evidence to ASIC in February 2017), Mr Evans lodged a registration renewal application with the Board.
A question was posed in the application form about matters that may have affected Mr Evans’ “good fame, integrity and character e.g. subject to any disciplinary action by a regulator or professional association.” The question was whether any such events had occurred to Mr Evans in the previous five years. Mr Evans answered “no” to that question. Mr Evans declared in the application form that he had answered all questions in it to the best of his knowledge, information and belief and that “they are true and correct in every particular”.
On 16 October 2018 (i.e., after the WAW board election in November 2015, after admitting to ASIC in August 2017 (in effect) that earlier evidence he had provided to ASIC on oath was incorrect and after having, in July 2018, pleaded guilty to a contravention of s 247C of the Crimes Act), Mr Evans completed and caused to be lodged with the Board an annual declaration on behalf of a company of which he was the sole director and shareholder (Neil Evans Financial Services Pty Ltd (NEFS)).
A question was posed in the declaration with respect to each director of NEFS (in other words, with respect to Mr Evans). The question was about matters that may have affected Mr Evans’ “good fame, integrity and character e.g. subject to any disciplinary action by a regulator or professional association.” The question was whether any such events had occurred to any of the current NEFS directors in the last 5 years. Mr Evans answered “no” to that question. Mr Evans declared that he had answered all questions in the declaration form to the best of his knowledge, information and belief and that “they are true and correct in every particular.”
At the hearing of his request for a stay order, it was submitted on Mr Evans’ behalf that there had been some misunderstanding in relation to the material lodged with the Board in October 2018. The nature of the misunderstanding was not identified and Counsel indicated he was not in a position to take the matter further.
Even if the previously described events comprising the first and second sets of circumstances could be said to have had no effect on Mr Evans’ integrity and character, it is difficult to conceive how Mr Evans could have honestly arrived at a view that they did not affect his good fame.
As acknowledged by Mr Evans’ solicitors,[8] the concept of “good fame” requires that consideration be given to a person’s reputation. In this regard, Mr Evans having been charged with, and pleading guilty to, a contravention of s 247C of the Crimes Act had received, according to Mr Evans’ counsel, quite a deal of publicity in the area in which the clients serviced by Mr Evans principally reside. Indeed, in a media release of 6 July 2018 (i.e. around 3 months prior to completing and lodging NEFS’ annual declaration with the Board) ASIC issued a media release which referred to Mr Evans’ plea of guilty and to his admission in the agreed facts concerning the misuse of personal details of not less than 499 WAW members. Moreover, again in July 2018, in a WAW customer newsletter, reference was made to ASIC having laid charges against Mr Evans, a reference accompanied by a statement that “we want to assure you that WAW is no longer referring customers to Mr Evans”.
[8] See Exhibit NJE-4 to Mr Evans’ affidavit of 27 May 2019.
Moreover, as is apparent from the transcript of the hearing conducted in July 2018 in relation to the s 247C charge, when he completed the NEFS declaration, Mr Evans would have been aware of ASIC’s intention to consider imposing a banning order on him under the Corporations Act 2001 (Cth) (a topic on which I will elaborate later). In sentencing remarks with respect to that charge, the Magistrate stated that “there’s a real possibility that ASIC will pursue you”. Indeed, in June 2018 ASIC had given notice to Mr Evans of its intention to conduct a hearing with respect to the potential imposition of a banning order.
As with medical professionals, no tax agent could have failed to understand the ultimate purpose of the enquiries made in the forms lodged by Mr Evans, being the protection of members of the public who call upon the services of tax agents and maintenance of the public’s confidence in the tax agent profession.[9]
[9] Medical Board of Australia v Patel [2015] QCAT 133 at [128]-[130].
On the material before me I find that Mr Evans’ conduct in relation to this third set of circumstances to have been dishonest.
I turn now to the various considerations to be taken into account in considering whether to grant Mr Evans’ request for a stay order.
INTERESTS AFFECTED
As previously identified, the first mandatory consideration is the interests of persons who may be affected by the Tribunal’s review of the Board’s decision.
In considering those interests I intend also to address the second, third and fourth of what I have characterised as the other considerations (i.e., the considerations concerning consequences for both Mr Evans and the Board should Mr Evans’ request for a stay order be refused or, in the case of the Board, be granted, and the public interest).
The process I adopt involves two stages.
The first stage entails identifying the relevant interests and determining how those interests may be affected by the refusal or grant of Mr Evans’ request for a stay order.
In this regard, those interests are, or at least include, the interests which an exercise of the registration termination power are intended to serve.[10] In large measure, they are identified by reference to the statutory scheme under which the decision under review was made,[11] in particular, to those aspects of the scheme which outline the procedures which lead to the making of such a decision.[12]
[10] Poidevin and Australian Securities and Investments Commission [2018] AATA 124 at [14].
[11] Levi v Companies Auditors and Liquidators Disciplinary Board [2013] FCA 719 at [15]; Kadeh and Migration Agents Registration Authority (Migration) [2018] AATA 4461 at [25].
[12] Poidevin at [14]; Kadeh at [14].
The second stage of the process entails weighing any potentially competing interests in order to determine whether they are, on balance, such as to support either the grant or denial of Mr Evans’ request. Central to the process of so resolving potentially competing interests is the scheme embodied in Tax Agent Services Act 2009 (Cth) (the Act).[13]
[13] Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130 (the AAT decision) at [52]-[53].
Hence, both stages of the process require a consideration of the scheme of the Act, including those aspects of the scheme of relevance to the exercise of the Board’s registration termination power.
ACT’S SCHEME AND REGISTRATION TERMINATION POWER
As for that scheme I adopt, with respect, the outline recently provided by Senior Member Taylor SC in Hill and Tax Practitioners Board.[14]
[14] Hill and Tax Practitioners Board (Taxation) [2019] AATA 756.
In that decision it was (at [9]-[15]) stated that:
[9] The basic purpose of the TASA provisions is to ensure that tax agent services are provided “in accordance with appropriate standards of professional and ethical conduct”:– see TASA s 2–5. (The expression “tax agent services” generally includes providing advice and representation services relating to Commonwealth taxation matters: see TASA s 90–5.) The TASA registration regime is a fundamental means of effectuating that purpose. Unless they do so as a practising lawyer, a person must be registered to be able to charge for providing “tax agent services”:- see TASA ss 2–10 & 50–5.
[10] The registration eligibility criteria for an individual tax agent include appropriate qualifications, experience and professional indemnity insurance. An individual registration applicant must also satisfy the Board that they are “fit and proper”:-see TASA s 20–5
[11] A corporate applicant for tax agent registration must satisfy the Board about similar criteria. Each of its directors must be a “fit and proper person”. The corporation must not have incurred a conviction for fraud, dishonesty or a “serious taxation offence” within the preceding five years. It must also have both (i) sufficient registered tax agents to appropriately to provide (and supervise the provision of) competent tax agent services and, (ii) appropriate professional indemnity insurance:- TASA ss 20–5(3).
[12] An otherwise competent individual applicant (and any director of a corporate applicant) will likely be regarded as “fit and proper” if they are of “good fame, integrity and character”:- TASA s 20–15(a). The considerations that may inform such an assessment are not prescriptively defined:- see TASA s 20–15(b); Toohey v Tax Agents Board of Victoria [2008] FCA 1796; (2008) 106 ALD 506 at [3]. They must include, but the assessment is neither limited to nor explicitly determined by, circumstances where, in the preceding five years, the person has
(a) been convicted, or otherwise sanctioned, for a “serious taxation offence” or certain other kinds of tax related misconduct:-TASA ss 20–15(b)(i) & 20–45(a)(c)&(d)
(b) been convicted of any offences involving fraud or dishonesty:- TASA ss 20–15(b)(i) & 20–45(b)
(c) served, or has been sentenced to, a term of imprisonment:- TASA ss 20–15(b)(i) & 20–45(f); 20–15(b)(iii)
(d) had the status of an undischarged bankrupt:- TASA ss 20–15(b)(ii).
[13] An applicant who satisfies the relevant eligibility requirements, must be registered:- TASA s 20–25. The minimum registration period is three years:- TASA s 20–25(4). Registration is renewable in response to a timely (or otherwise permitted) application. Where an agent has submitted a proper renewal application, their registration is taken to continue until the application has been determined by the Board:- TASA s 20–50.
[14] As a registered person, a tax agent is subject to various obligations. They include
(a) compliance with any registration conditions imposed by the Board
(b) compliance with the statutory Code of Professional Conduct:-TASA s 20–25(5) & 30–10. (The Code sets out basic requirements of honesty, competence, lawfulness, client best interest and professional indemnity insurance.)
(c) notifying the Board “whenever” they cease to meet any of registration requirements:-TASA s 30–35(1)(a)
(d) notifying the Board if (amongst other things) they have either been convicted of dishonesty or sentenced to imprisonment:-TASA s 30–35(1)(b) & 20–45.
[15] The Board can terminate a tax agent’s registration in various circumstances. One circumstance is where the agent ceases to meet a registration requirement:-TASA ss 30–15, 40–5(1)(b). Other circumstances include (i) breach of a registration condition, (ii) failure to comply with the Code, (iii) conviction for a dishonesty offence or, (iv) incurring a sentence of imprisonment:–TASA ss 30–15, 40–5(1)(a) & 20–45(b),(f).
By way of reinforcement and, in some respects an expansion, of what was said in Hill, I note that:
·The Act confers on registered persons a near monopoly in the provision of tax agent services (s50-5). It is in return for this privilege that the Act imposes obligations and responsibilities on tax agents.[15]
·The object of the Act is to ensure that tax agent services are provided to the public in accordance with appropriate standards of professional and ethical conduct, an objective to be achieved by, amongst other things, introducing a code of professional conduct and providing for sanctions to discipline those registered under the Act (s2-5).
·The first requirement of the code of professional conduct identified in the Act is that persons registered under the Act “must act with honesty and integrity” (s30-10).
·In order for an individual to be registered the first matter specified in the Act of which the Board must be satisfied is that the individual is a fit and proper person (s20-5).
·In deciding whether or not an individual is a fit and proper person the first matter specified in the Act as a criterion to which regard must be had concerns the issue of the individual’s good fame, integrity and character (s20-15).
[15] Stasos v Tax Agents Board (1990) 21 ALD 437 at 443.
In terms of the Board’s power to terminate an individual’s registration, I note:
·Notice of a registration termination decision, along with reasons for the decision, must be given to the person concerned and, in the case of a registered tax (financial) advisor such as Mr Evans, to ASIC, and the decision can only take effect no less than 28 days after the date of the notice (s40-20).
·An application for review of such a decision can be made to the Tribunal (s70-10) (as Mr Evans has done).
·A ground upon which the registration termination power is expressed to be exercisable is that the relevant individual ceases to meet one of the tax practitioner registration requirements (s40-5(1)(b)). (This is the ground relied upon by the Board in the case of its registration termination decision with respect to Mr Evans.)
·The tax practitioner registration requirements are the matters about which the Board must be satisfied before it becomes obliged to grant an application for registration (s90-1).
·Those matters include that an applicant individual is a fit and proper person (ss20-25(1) and 20-5(1). (In making its registration termination decision in relation to Mr Evans, the Board concluded that he had ceased to be a fit and proper person.)
·Another such matter is that the individual meets the requirements prescribed by the regulations in respect of a registration of the type for which the individual has applied.
·The requirements prescribed by the regulations in respect of a tax (financial) adviser registration (the type of registration obtained by Mr Evans) include that the relevant individual be, or have within the preceding 90 days been, either a financial services licensee within the meaning of Chapter 7 of the Corporations Act 2001 (Cth) or a representative of a financial services licensee within the meaning of paragraph 910A(a) of the Corporations Act 2001(Cth). [16]
[16] Tax Agents Services Regulations 2009 (Cth), Reg 8A.
In considering these last two bullet points I note now, simply for the purpose of returning later to it, that Mr Evans has recently been made the subject of an ASIC permanent banning order.
While Mr Evans has deposed that he is an “authorised Australian Financial Service Representative” the effect of the banning order would appear to have been to render void the authorisation inherent in Mr Evans’ status as an authorised representative. [17]
[17] S 916A(3) Corporations Act 2001 (Cth).
The Tribunal was advised that Mr Evans has applied for a stay order with respect to ASIC’s banning order decision. Unless that application is successful, however, it seems likely that, in less than 90 days from the date of the hearing of Mr Evans’ request for a stay order in this proceeding, he will cease to meet the tax practitioner registration requirement concerning his status as either a financial services licensee or an authorised representative.
INTERESTS OF MR EVANS AND ASSOCIATES AFFECTED
Even if it were not otherwise obvious, it is clear from the scheme of the Act that the interests of a person the subject of a Board registration termination decision are affected by the decision. For instance, as previously indicated, such a person is to be given reasons for the decision and has a right to obtain Tribunal review of the decision.
Hence, as the person the subject of the Board’s registration termination decision under review by the Tribunal, account needs to be taken of Mr Evans’ interests.
Account also needs to be taken of the interests of certain persons associated with Mr Evans. Like an ASIC banning order, this would include Mr Evans’ dependants and employees, and his existing and potential clients.[18]
[18] AAT decision at [51], cited with approval in Kadeh and Migration Agents Registration Authority (Migration) [2018] AATA 4461 at [13].
It was submitted on behalf that his interests and those of his associates would be materially adversely affected by a refusal to grant his request for a stay order.
By way of general comment, this submission was long on assertion and short on substance.
In terms of particulars, Mr Evans deposed to the fact that NEFS is the entity under which he operated his financial planning business and that tax agent services account for approximately 80% of NEFS’ business.
In terms of Mr Evans personally, I have inferred from this that the financial planning business to which Mr Evans refers is, in fact, NEFS’ business and that Mr Evans derives a return from that business indirectly, whether through dividends (in his capacity as sole shareholder of NEFS), director’s fees (in his capacity as sole director of NEFS) or salary (in his capacity as an employee of NEFS).
Hence, the effect on Mr Evans’ personal interests should his request for a stay order be refused depends very much on the effect of that refusal on NEFS’ interests, an issue I address later.
I do note, however, that the Tribunal was not directed to any material concerning the issues of whether the return indirectly derived by Mr Evans from NEFS’ financial planning business represents his only source of income or of what his asset and liability position is generally.
Hence, I am unable to attribute significant weight to a submission that it will be very difficult for Mr Evans to support those who would appear to be his dependants, being his partner, his 18 year old step-son and his mother. (This is the more so given that this aspect of the submission was expressed in terms of the effect of the registration termination decision, as opposed to the effect on Mr Evans should the request for a stay order be declined.)
As for NEFS, while 80% of its business may be attributable to tax agent services, it is not clear what is meant to be conveyed by the reference in this context to “business”. It could be a reference to a number of things, such as profit, turnover or hours worked. Whatever it means, however, I infer that there will be an adverse effect on NEFS’ financial position if the stay order request is not granted. Submissions made on behalf of Mr Evans appeared to build upon that adverse effect to suggest that denial of the stay order request would or may have the result that, pending the substantive hearing of Mr Evans’ application to review the Board’s registration termination decision, NEFS becomes either:
(a)legally unable to provide tax agent services; or
(b)commercially unable to retain its client base while Mr Evans is precluded from providing such services.
It is not, however, clear why refusal of Mr Evans’ stay order request would have either of these results.
There was some suggestion that NEFS’ ability, legally, to provide tax agent services would be put at risk if the stay order request was declined;[19] apparently because declining the stay order request exposed NEFS to a risk of its registration under the Act being terminated.
[19] Affidavit of 27 May 2019 at [40].
First, in this context, the materiality of a risk depends, at least in part, on the likelihood of its crystallisation pending the substantive hearing of the review of the Board’s registration termination decision.
While Mr Evans did note that NEFS had been advised in May 2019 that the Board was conducting enquiries into the issue of whether NEFS was meeting registration requirements, little information was available to the Tribunal that would have enabled it to assess the likelihood of those enquiries resulting in a decision adverse to NEFS’ registration being made prior to the Tribunal’s review hearing. Indeed, at the hearing of Mr Evans’ request for a stay order, the Tribunal was advised that the Board’s investigation into NEFS had been temporarily put on hold.
Secondly, and in any event, how declining Mr Evans’ stay order request would exacerbate the risk of an outcome from the Board’s enquiries adverse to NEFS’ ongoing registration was not identified.
In this regard, it might be suggested that declining the stay order request would expose NEFS to a risk of its being considered not to satisfy ongoing eligibility requirements of companies for registration under the Act. One such requirement is that a company have a sufficient number of individuals to provide relevant tax agent services to a competent standard, and to carry out supervisory arrangements (s20-5(3)). Another such requirement, however, is that each director of a company be a fit and proper person. It is this latter requirement that would appear to be the focus of the Board’s attention in relation to NEFS.[20]
[20] See [36] of Mr Evans’ affidavit of 27 May 2019.
Given this latter requirement, NEFS would seem already to face a risk concerning its registration, a risk the likelihood of crystallisation of which would not seem to be influenced by a decision on a stay order request.
Hence, while terminating NEFS’ registration would no doubt negatively affect the interests of NEFS, and of employees and clients of NEFS (as Mr Evans contends),[21] it has not been made clear why declining the stay order request would exacerbate the risk of this occurring.
[21] Affidavit of 21 May 2019 at [41] [54].
As to NEFS’ ability, commercially, to retain its client base should the request for a stay order be declined, a number of statements were made which generally did not rise above the level of unsupported assertion.
Mr Evans stated that, if he is prevented from operating NEFS, the employees of NEFS “will effectively be without a job”.[22] Moreover, he stated that a refusal to grant his stay request would cause irreparable damage to his “business [presumably, to NEFS business], staff, myself and my family”.[23]
[22] Affidavit of 21 May 2019 at [42].
[23] Affidavit of 21 May 2019 at [46].
In making these statements Mr Evans appears to be asserting, impliedly, that NEFS will not retain its customer base if he does not operate NEFS, even temporarily.
It is not clear what is entailed in operating NEFS or why a bar on Mr Evans’ providing tax agent services would prevent such operation.
More importantly, no rational basis for contending that a temporary bar on Mr Evans providing tax agent services would result in NEFS losing its customer base was identified let alone established. Much would depend, I suspect, on the extent to which the goodwill of NEFS’ business is dependent on Mr Evans’ ongoing provision of tax agent services, the strength of that goodwill (as opposed to other forces that might attract customers to a financial planning business), the survivability of that goodwill (in the sense of its capacity to endure in the face of a temporary interruption in service provision), the practical capacity of NEFS to continue to provide tax agent services, the level of competition in the market in which NEFS operates and the length of time before the substantive review application is heard.
Largely, these matters were not specifically addressed but left to speculation.
One matter that was addressed, however, concerns the capacity of NEFS to continue to provide tax agent services should Mr Evans be barred from doing so.
As to this matter Mr Evans states that “NEFS will be unable to service the taxation and financial planning needs of its clients if a stay is not granted”.[24]
[24] Affidavit of 21 May 2019 at [49].
In so far as Mr Evans is alluding to his contentions concerning risk to the legal capacity of NEFS to provide tax agent services, it has (as previously indicated) not been made clear why declining the stay order request would materially exacerbate that risk.
In so far as Mr Evans is suggesting that NEFS would be unable, as a practical matter, to service its client base, again, it is not clear why this would be so.
Clearly, the inability of Mr Evans to provide tax agent services would adversely affect NEFS’ ability to provide such services. An adverse effect on an ability is not, however, an inability. This is especially so where, as here, the adverse effect would seem to be capable of amelioration given that:
·NEFS has available to it the services of another senior financial advisor. Indeed, Mr Evans identified the risk to NEFS and its business (and, presumably to clients of NEFS) as one which arose “where the sole financial advisor becomes unwell and is unable to work or resigns.”[25]
·Presumably, other financial advisors are available to be engaged by NEFS (noting that no material provided on behalf of Mr Evans negated the possibility of NEFS doing so[26]).
[25] Affidavit of 21 May 2019 at [39].
[26] In Gould and Tax Practitioners Board [2019] AATA 1056 at [31]-[32] an applicant for a stay order failed in part because no evidence was adduced to support a contention that it was not open to the applicant to engage further personnel.
Mr Evans also addressed an aspect of the market in which NEFS operates, being an aspect concerning the risk of loss of NEFS’ client base from conduct of a particular competitor. He believes that the competitor will not hesitate to use improperly sourced information concerning NEFS’ client base if he “cannot deal with clients”.[27] Why the competitor would defer using that information until Mr Evans became barred from providing tax agent services is left to speculation.
[27] Affidavit of 21 May 2019 at [53].
I have already, to an extent, addressed the interests of employees of NEFS in considering submissions made with respect to NEFS and its business.
NEFS employs five staff, in addition to Mr Evans.
Assuming an adverse effect on NEFS profitability should Mr Evans’ stay order request be denied, NEFS capacity to continue to employ those staff may similarly be adversely affected, depending on the severity of that effect.
Material that would assist in assessing the likely severity of that effect was not, however, provided to the Tribunal.
A conclusion that the adverse effect on NEFS’ profitability resulting from denial of the stay order request would give rise to a material risk to NEFS’ capacity to continue to employ the relevant staff could only be arrived at after also concluding that:
·Denial of the stay request is likely to have a materially adverse effect on NEFS’ profitability.
·NEFS does not have available to it other resources sufficient to enable it to support its retention of staff pending the hearing of Mr Evans’ substantive review application.
Neither of these conclusions are open on the material before the Tribunal.
I turn now to consider the interests of NEFS’ clients, present and prospective.
As with NEFS’ staff, I have already, to an extent, addressed the interests of NEFS’ clients in considering submissions made with respect to NEFS and its business, in particular, the submission that NEFS will be unable to service its clients’ needs if the request for a stay order is denied.
It is clear that those of NEFS’ clients who have a relationship with Mr Evans, personally, will be inconvenienced should the request for a stay order not be granted. The extent of this inconvenience is, however, unclear.
While Mr Evans deposes that NEFS has over 400 clients, the proportion of that client base as has a personal relationship with him is not identified. Indeed, in commenting upon the effect on clients, Mr Evans spoke of the impact on them should he “and NEFS” become unable to provide taxation advice.[28]
[28] Affidavit of 27 May 2019 at [38].
In this regard, any client inconvenience arising as a result of Mr Evans becoming unable to provide tax agent services would seem to be capable of amelioration:
·As long as NEFS remains able to provide the services using other staff. As stated previously, it is unclear why, as a practical matter, NEFS would be unable to do this if the stay order request is refused.
·Given the availability of third party suppliers of taxation and financial advisory services in the market serviced by NEFS (as referred to in Mr Evans’ affidavit).
Overall, the interests of Mr Evans and his associates are such as to favour the grant of his stay order request, but not strongly so.
This then brings us to a consideration of the public interest.
PUBLIC INTEREST
It is clear from the scheme of the Act that the interests of the public are interests that ought be taken into account in considering whether it is desirable to grant a stay order request. Indeed, the objective underlying the Act is (as previously identified) one concerned with the standards of service provision to the public.
There are a number of aspects of the public interest.
Indeed, as submissions made on behalf of Mr Evans make clear, a number of them are in potential competition.
For instance, certain aspects of the public interest would require that regard be had to the consequences for Mr Evans and for NEFS should the request for a stay order be denied. In particular:
·The public has an interest in the proper administration of justice. In that context, it is said to be desirable that those found to have engaged in improper conduct be able to seek redress without undue adverse consequences.[29]
·The public has an interest in seeking to ensure that viable and legitimate businesses do not fail and thereby jeopardise the employment of staff.[30]
[29] Re Mahaffy and Tax Practitioners Board [2104] AATA 17 at [36].
[30] Zarfati and Australian Securities and Investments Commission [2008] AATA 989 at [23].
I have addressed these aspects of the public interest when considering the interests of Mr Evans and of his associates.
In this part of my reasons I intend to address the more broadly public aspects of the public interest.
Before turning to these aspects of the public interest, however, I should first seek to deal with a contention made on behalf of Mr Evans as to conduct of relevance to any assessment of the public interest.
Conduct needs to relate to tax agent services?
Mr Evans contends that the Board’s registration termination decision was wrong for a number of reasons, including that, in the decision, the Board confused his conduct “as being analogous with my work as a financial planner”.
This contention reflects a proposition taken up by counsel for Mr Evans in the hearing of his stay application request. That proposition was to the effect that conduct that occurs outside the context of the provision of tax agent services is irrelevant to a consideration of the public interest. It was expressed in terms of a requirement that the conduct be sufficiently related to such services.
I reject that proposition.
First, I note that it had previously been accepted on behalf of Mr Evans that the obligation imposed by the Act to act with honesty and integrity regulates both professional and personal conduct.[31]
[31] See exhibit NJE-4 to Mr Evans’ affidavit of 27 May 2019.
Second, and more importantly, registered tax agents occupy a position of considerable trust. Accordingly, as with medical practitioners, “it is in the public interest that they should merit that trust.”[32]
[32] Medical Practitioners Board of Victoria v McGoldrick [1999] VSCA 215 at [24].
The Act imposes a fit and proper person test to protect the public. The “very purpose”” of the “fit and proper person” expression is to “give the widest scope for judgment and indeed rejection”.[33]
[33] Hughes & Vale Pty Ltd v NSW (No 2) (1955) 93 CLR 127 at 156.
Hence, in considering whether a person is fit and proper to undertake the tax agency profession with the aim of protecting the public, it is appropriate to consider instances of dishonesty that occur beyond the ambit of the professional context. They may disclose defects in character incompatible with membership of the profession.[34]
Nature of public interests
[34] See the discussion of this issue in Dadwal and Tax Practitioners Board [2018] AATA 2878 at [67]-[69]; [71]-[78].
As to the broader aspects of the public interest, it was submitted on behalf of Mr Evans that there was minimal risk to the public if his stay order request were to be granted.
Mr Evans drew the Tribunal’s attention to the sentencing remarks of the Magistrate before whom the charge of contravening s 247C of the Crimes Act was heard in July 2018.
In particular, the Magistrate characterised Mr Evans’ offending as being out of character and as occurring “in a moment of madness”, and that he was a “person otherwise of excellent character”.
The Magistrate’s remarks are suggestive of a low risk of recidivism.
A similar suggestion appears to underlie other elements of submissions made on Mr Evans’ behalf. They were to the effect that he has had no convictions recorded against him, he had not been sanctioned or disciplined by a professional body or regulator prior to the matters addressed by the Board in its registration termination decision and, since the “impugned conduct,” there had been no further contraventions.
There are two propositions to which these submissions were apparently directed.
The first is that the dishonest conduct engaged in by Mr Evans constituted a unique, one-off, occurrence. I address this proposition later.
The second is that little weight should, in the circumstances, be given to any concern about the public interest as it is directed to protecting the public against the risk of recidivism and that risk is minimal in the circumstances.
I do not agree with this second proposition. The validity of it rests on three contentions, being that:
·Taking account of the interests of the public means protecting the public.
·The only matter against which the public requires protection is the risk of recidivism.
·In the circumstances, the risk of recidivism is minimal.
I accept the first contention, reject the second and do not accept the third.
The first contention is, I believe, uncontroversial. As Senior Member Cotter stated in Brown,[35] the purpose of the termination of registration provisions of the Act is not to punish the relevant tax agent but to protect the public. In a different but analogous context it was said that:
"Although it is sometimes referred to as 'the penalty of disbarment', it must be emphasized that a disbarring order is in no sense punitive in character. When such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege."[36]
[35] GJ Brown and Tax Practitioners Board [2016] AATA 740 at [92].
[36] Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-202.
As to the second contention, as I have stated, I reject it. The recidivism risk is only one of the risks against which the public is to be protected.[37]
[37] Compare Legal Practitioners Conduct Board v Nicholson [2006] SASC 21 where, at 30, it was suggested that the public interest function of a regulatory regime can be regarded as served if the decision maker is satisfied that the offender has recovered.
Another risk against which the public is to be protected is the risk to the capacity or willingness of government departments or agencies to deal with tax agents effectively and efficiently. Necessary to the conduct of those dealings is an atmosphere of mutual trust. The maintenance of such an atmosphere would be put at risk if the Board was not perceived to be active in weeding out from the tax agent profession those who engage in dishonest conduct.[38]
[38] Stasos v Tax Agents’ Board (1990) 21 ALD 437 at 443; Dadwal and Tax Practitioners Board [2018] AATA 2878 at [90]-[92].
Another risk against which the public is to be protected is the risk to the standing of the profession in the eyes of the public. The effective functioning of the tax agent profession is in the public interest. Conduct which is adverse to the standing of that profession in the eyes of the public is deleterious to that effective functioning and, so, deleterious to the public interest. Hence, preservation of the general community’s confidence in tax agents is of fundamental concern.[39]
[39] G J Brown & Co Pty Ltd and Tax Practitioners Board [2016] AATA 740 at [82].
The decision in The Law Society of SA v Rodda[40] is instructive. It concerned a legal practitioner who had been convicted of sexual offences. He was struck off. Doyle CJ stated that:
The reputation and standing of the legal profession in the public eye are important. Public confidence and trust in the legal profession is important to the effective functioning of the profession. That confidence and trust rest in part on the reputation and standing of the profession. The public could not view with respect, and have complete confidence in, a person with such serious and recent convictions. Were the Court to continue to hold Mr Rodda out as a fit and proper person to remain a member of the profession, the standing of the profession as a whole would suffer.[41]
[40] [2002] SASC 274.
[41] Ibid at [29]. Cited with approval in Legal Practitioners Complaints Committee v Pepe [2009] WASC 39 at [9].
A number of comments of Senior Member Taylor SC in his recent decision in Beckett serve to emphasise the importance of maintaining the public’s confidence in the tax agent profession, comments with which I respectfully agree.
In particular, the Senior Member commented that:
·The promotion of confidence in tax agents’ dutiful discharge of their obligations and proper use of their status is an objective of the Act’s registration and regulation scheme.[42]
·The Act’s “overall protective objective requires regard to the repute of tax agents generally, and to the maintenance of public confidence in their competence and integrity”.[43]
·An emphasis on the risk of recidivism “should not detract from the relevance of both fame and character in the fitness assessment” so that “satisfaction about a person’s honesty is fundamental to a determination that they are fit and proper for registration as a tax agent”.[44]
[42] Beckett and Tax Practitioner’s Board [2018] AATA 1860 at [40].
[43] Beckett at [46].
[44] Becket at [44].
Submissions made on Mr Evans’ behalf focussed on the recidivism risk. No submissions were made directed to this issue of confidence in the profession other than in response to questions posed of counsel at the hearing of the stay order application.
In response to a question specifically concerning public confidence in the profession, counsel for Mr Evans contended that the issue was addressed by clients having a choice to use Mr Evans’ services, a choice likely to have been informed by knowledge of his past conduct given wide spread publicity to the s247C charge. This was coupled with a suggestion that any stay order could incorporate a “no new clients” condition.
I do not find that the risks to the public interest reflected in the need to maintain third party and general public confidence in the tax agent profession are, in the circumstances, minimal. It is not clear to me how the risks to the maintenance of confidence in the profession arising from the continued registration of a person believed to have engaged in dishonest conduct are addressed by limiting the person’s clientele to existing clients. Mr Evans has, therefore, not satisfied the “practical onus” on him of establishing that this aspect of the public interest consideration supports the grant of his request for a stay.
As to the third contention made on Mr Evans’ behalf (being that the risk of recidivism is minimal in the circumstances), I do not accept it.
I do so despite the sentencing remarks made in relation to the s247C charge by the Magistrate concerned.
As to the “moment of madness” comment made by Her Honour, it was made in a context in which she was outlining her lack of understanding of the reasons for Mr Evans having committed the s247C offence given an apparent absence of any financial motive. This suggests that the Magistrate was not specifically apprised of Mr Evans’ (or NEFS) referral arrangement with WAW and, hence, of Mr Evans’ indirect financial interest in the financial and operating policies adopted by the board of WAW.
Second, I do not accept the Magistrate’s one-off characterisation of Mr Evans’ dishonest conduct in relation to the s247C offence given his subsequent, and relatively recent, conduct in relation to the second and third sets of circumstances I previously outlined (concerning the ASIC investigation and forms lodged with the Board). Those circumstances were, presumably, not brought to the Magistrate’s attention or had not occurred at the time she made her sentencing remarks.
I note that no submissions or material were directed to any proposition along the lines that Mr Evans was, at the time of the s247C offence (being the time of the WAW board election in November 2015), attempting to deal with a unique situation, one that he would likely not ever have to confront again.
Moreover, a conclusion that the risk of recidivism is minimal is often supported by submissions and material suggesting some self-awareness as to the wrongness of the conduct concerned and genuine contrition for it. Absent submissions and material of that nature in this matter, it is difficult to see why the Tribunal should be convinced that there is minimal risk of the past repeating itself.
Indeed, “[i]f a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that… he has established himself as a different man.”[45] This is especially the case where, as here, the “serious deficiencies” involve dishonesty,[46] as “there is no more fundamental obligation of a tax agent than that of honesty”.[47]
Board consequences
[45] Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461.
[46] Beckett at [49]-[50].
[47] Beckett at [89].
As for the consequences for the Board in carrying out its functions should the request for the stay order be granted or refused, I propose to say very little.
On the Board’s behalf it was submitted that, if Mr Evans’ request for a stay order is granted, the Board will be unable to fulfil its duties under the Act in maintaining appropriate standards of professional and ethical conduct amongst tax agents.
The proposition underlying this submission is unclear. If, however, it is that granting a stay order request in the circumstances would suggest some incapacity of the Board to deal appropriately with dishonest conduct, it is rejected.
First, we are dealing here with an interlocutory application the result of which says little about the ultimate disposition of Mr Evans’ review application. Secondly, were Mr Evans’ stay order request to have been granted, it would have been because of the particular factual circumstances identified in the submissions made on his behalf, not because of some principle having broad ranging effect.
Hence, the consideration concerning the consequences for the Board should the stay order request be granted is not such as to support refusal of the request.
Conclusion on public interest
Notwithstanding my conclusion with respect to the consideration concerning consequences for the Board should Mr Evans’ stay order request be granted, overall, the interests of the public are such as to suggest that the request ought be refused.
RESOLVING COMPETING INTERESTS
I now come to the second stage of the two stage process I said earlier I would adopt in considering the interests of persons who may be affected by the Tribunal’s review of the Board’s decision.
This second stage entails weighing competing interests in order to determine whether they are, on balance, such as to support either the grant or refusal of Mr Evans’ request for a stay order.
Central to this process of resolving competing interests is the scheme embodied in the Act.
A review of that scheme suggests that, in the event of competing interests and absent particular circumstances warranting the attribution of significant weight to the interests of a stay order applicant and his or her associates, the interests of the public ought prevail.
Protection of the public interest is fundamental to the Act. As mentioned previously, the object of the Act is expressed in terms protective of the public; being to ensure that tax agent services are provided to the public in accordance with appropriate standards of professional and ethical conduct. More specifically, protection of the public interest is the object to which the Act’s registration regime is directed.[48]
[48] Hill and Tax Practitioners Board [2019] AATA 756 at [59]. See also GJ Brown and Tax Practitioners Board [2016] AATA 740 at [92].
Here we are dealing with competing interests. The interests of the public are such as to suggest that Mr Evans’ request for a stay order ought be refused while the interests of Mr Evans and his associates suggest otherwise, but not strongly. Given the view I have taken as to the scheme of the Act, the former interests prevail.
Hence, on balance, the interests of those persons who may be affected by the Tribunal’s review of the Board’s decision are such as to suggest refusal of the stay order request.
I turn now to the other consideration that must be taken into account in considering that request.
SUBSTANTIVE REVIEW APPLICATION STILL EFFECTIVE OR RENDERED NUGATORY?
The second mandatory consideration concerns the appropriateness of the requested stay order for the purpose of securing the effectiveness of the hearing and determination of Mr Evans’ substantive review application.
In this context, I will address one of what I have characterised as the other considerations, being the issue of whether, absent the requested stay order, the substantive application for review would be rendered nugatory.
On behalf of Mr Evans, it is submitted that the substantive review application would, indeed, be rendered nugatory (and, presumably, thereby ineffective) absent the stay order.
In particular, it is submitted that a successful outcome on appeal will be rendered nugatory because without a stay order Mr Evans would “have no business to return to and no future in the financial services industry.”
I do not accept this submission.
The submission appears to rest on material in Mr Evans’ affidavit concerning “his” (or, possibly more accurately, NEFS’) client base, material which is compressed into a contention that the client base will likely be lost to Mr Evans (and, presumably, to NEFS) if the stay order request is refused.
I have addressed that material earlier in discussing the effect a refusal of the stay order request would have on the interests of Mr Evans and his associates. I do not propose to repeat what I have said before other than to say that the material made available to the Tribunal does not identify let alone establish a rational basis for contending that a temporary bar on Mr Evans providing tax agent services would result in NEFS losing its customer base.
I also note in passing that the material provided does, in part, suggest that any risk to the capacity of NEFS to maintain its client base is subject to a contingency, being that the financial advisor it employs (in addition to Mr Evans) “becomes unwell and is unable to work or resigns.”
Accordingly, there is no established basis for concluding that the making of the requested stay order is appropriate for the purpose of securing the effectiveness of the hearing and determination of Mr Evans’ substantive review application.
Hence, this consideration does not operate to support the grant of the requested stay order.
The final matter to be addressed is the last of what I have characterised as the other considerations, being the prospects of success.
PROSPECTS OF SUCCESS
This final consideration requires an assessment of the prospects of success of the substantive application for review.
I note that an assessment of prospects at this stage of the proceeding can only ever be somewhat superficial. As was said in Poidevin[49] “it is not the role of the Tribunal in an interlocutory application of this nature to conduct a review of the merits or strength of the arguments, even on a preliminary basis.”
[49] Poidevin and Australian Securities and Investments Commission [2018] AATA 124 at [39].
Nevertheless, as submitted on behalf of Mr Evans, I should consider “… whether there are facts and circumstances which, if established at the substantive hearing, would provide a basis for the applicant’s success in the review on application; or whether there are points of law raised which, if sustained, would lead to that conclusion.”[50]
[50] Re Snook and Civil Aviation Safety Authority (2008) 109 ALD 122 at [21] cited with approval in Levi v Companies Auditors and Liquidators Disciplinary Board [2013] FCA 719 at [31].
No points of law were raised in submissions made on Mr Evans’ behalf that, if sustained, would provide a basis for success of the substantive application for review.
As to facts and circumstances, in this proceeding Mr Evans has not objected to the accuracy of the facts I set out when describing three sets of circumstances relevant to my evaluation of his conduct. Nor has he sought to put a different complexion on these facts by seeking to establish exculpatory or other facts.
He might wish, however, to object to the characterisation of his conduct I arrived at on the basis of those facts, to wit, that his conduct was dishonest. For instance, counsel for Mr Evans claimed that there may have been some misunderstanding of the material Mr Evans lodged with the Board in 2018. The choice was made, however, not to take that claim any further in the context of the stay order proceeding. That choice reflected what seemed to be a more general approach not to engage to any material extent in a defence of Mr Evans’ conduct or in a refutation of the inferences that may be drawn from that conduct.
Termination of registration involves an exercise of Board discretion. The focus of Mr Evans’ submissions and material in this proceeding was not such as would reflect a challenge to the capacity of the Board to exercise that discretion (or to subsistence of any jurisdictional fact that would need to subsist as a pre-condition to exercise of the discretion). Rather, those submissions and material suggest a challenge to the appropriateness of an exercise of the discretion in the circumstances.
Mr Evans failed to establish many of the facts and circumstances referred to in the submissions and material made and submitted on his behalf in this proceeding. Assuming he was able to do so at the substantive hearing of his application for review, however, an exercise of the discretion not to terminate his registration (whether absolutely or on the basis of imposition of some lesser “penalty”) might well be the result. That is, on that assumption, Mr Evans might well end up being successful.
Given this conclusion, the “prospects of success” consideration is such as to favour a grant of Mr Evans’ stay order request, but not strongly so. It is based on an assumption as to a capacity to establish facts and circumstances which Mr Evans was unable to, or chose not to, establish in this proceeding.
This consideration is, however, outweighed by the consideration concerning the interests of those persons who may be affected by the Tribunal’s review of the Board’s decision, especially given the paramount importance given by the Act to the public interest.
CONCLUSION ON THE APPLICATION
For the reasons articulated above, the Tribunal refuses Mr Evans’ request under s41(2) of the Administrative Appeals Tribunal Act 1975 for an order staying or otherwise affecting the operation or implementation of the decision to which this review proceeding relates.
I certify that the preceding one-hundred and eighty (180) paragraphs are a true copy of the reasons for the decision herein of Chris Furnell .............[sgd]..........................................
Associate
Dated: 19 June 2019
Date(s) of hearing:
6 June 2019
Solicitors for the Applicant: Tisher Liner FC Law Counsel for the Applicant:
John Hibble
Solicitors for the Respondent: Self-Represented Advocate for the Respondent: Angela Lee
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