Gardner and Commissioner of Taxation (Practice and procedure)

[2025] ARTA 203

Gardner and Commissioner of Taxation (Practice and procedure) [2025] ARTA 203 (6 February 2025)

Decision and Reasons for Decision

Applicant:  Michael Andrew Paul Gardner

Respondent:  Commissioner of Taxation

Tribunal Number:                2024/1467

Tribunal:  General Member J Dunne

Place:  Melbourne

Date:  6 February 2025

Decision:The Tribunal dismisses the application pursuant to section 100 of the Administrative Review Tribunal Act 2024 (Cth).

...................................[SGD]...................................

General Member J Dunne

Catchwords

PRACTICE AND PROCEDURE – Applicant sought review of taxation decision where Respondent did not accept a late objection – No reasoning provided for why late objection should be accepted – Applicant given directions to file statement of facts issues and contentions and further evidence – Respondent provided Applicant further information about the late objection discretion – Applicant repeatedly failed to meet Tribunal directions within a reasonable time – Application dismissed.

Legislation

Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).

Administrative Review Tribunal Act 2024 (Cth), ss 9, 100, 102.

Taxation Administration Act 1953 (Cth) ss 14ZW(2), 14ZW(3), 14ZX.

Cases

Abeysinghe Herath Mudiyanselage and Secretary, Department of Social Services [2024] AATA 1016

Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299

Berthelsen and Secretary, Department of Social Services [2024] AATA 1975

Charara v Commissioner of Taxation [2016] FCA 451

Guse v Comcare [1997] FCA 140

LVR (WA) Pty Ltd v Administrative Appeals Tribunal and another [2012] FCAFC 90

Rimmer and Comcare [2024] AATA 3387

Ziolkowski and Commissioner of Taxation [2024] AATA 2857

Statement of Reasons

1. In this case the Applicant sought to review the Respondent’s decision dated 20 February 2024 not to grant an extension of time to lodge an objection in relation to the assessments which resulted from audits by the Respondent of the 2000-07 income years. The Respondent’s decision was made pursuant to subsections 14ZW(2), 14ZW(3) and section 14ZX of the Taxation Administration Act 1953 (Cth).

1. The Applicant’s objection was dated 2 October 2023,1 and related to GST and income tax in the periods from 1 July 2000 to 30 June 2007. The objection also sought to object to “General Interest Charge and fines”. The only statement that was relevant to its lateness was “I am aware I am out of time as per the legislation but asking you to look at my case as [the] Australian Taxation Office has made huge mistakes in [the] whole audit process.”2

1. The Application for Review dated 11 March 20243 also contained no details as to why the Applicant’s late objection should be accepted on its merits. For example, the Applicant’s Application for Review makes bald statements such as “The audit is totally incorrect because the auditors did not know what they are doing and were not qualified.”4 The Applicant is represented by an agent, Mr John Gray.

1. The Respondent provided the Applicant with information relating to late objections and advised the Applicant it needed to know why the objection was lodged late.5 The Tribunal gave the Applicant an opportunity to put his case properly. Directions were issued by the Tribunal seeking a Statement of Facts, Issues and Contentions and supporting evidence from the Applicant. Extensions of time were sought and consented to by the Respondent. However, there has been no compliance by the Applicant and timetables have passed without the Applicant contacting the Tribunal. The Respondent has consistently had to chase the Applicant.

1 T4-26

2 Ibid.

3 T1. 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 in that were not finalised before 14 October 2024 are continued and finalised by the Administrative Review Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Administrative Review Tribunal.

4 T1-7

5 T5-28.

1. The following dates have not been met by the Applicant:

(a)Pursuant to a direction dated 30 May 2024, the Applicant was required to file any further evidence on which he intends to rely and a Statement of Facts, Issues and Contentions on or before 26 July 2024. The Applicant did not meet that deadline.

(b)Following this, there was liaison between the Respondent and the Applicant:

(i)By consent, there was an extension of time for the Applicant for the above, to 9 August 2024. The Applicant did not meet that deadline.

(ii)By consent, there was an extension of time for the Applicant for the above, to 29 August 2024. The Applicant did not meet that deadline.

(iii)A further extension of time was sought by the Applicant to 19 September 2024. The Applicant did not meet that deadline. The Tribunal was not contacted.

(c)A further direction was issued by the Tribunal on 21 November 2024. The Applicant had still not filed a Statement of Facts, Issues and Contentions nor any further evidence upon which he intended to rely. That direction provided a new deadline of 17 January 2025. The Applicant did not meet that deadline.

(d)The Applicant has not engaged with the Tribunal prior to the expiry of any deadlines.

1. The Tribunal accepts that there can be valid reasons for non-compliance with directions. However, where the Applicant is represented by an agent (as is the case here), it is expected that the Applicant notifies the Respondent and the Tribunal before a deadline expires with valid reasons for non-compliance and with a timetable proposed that is then met. That has repeatedly not happened here. One of the objectives of the Tribunal is to ensure that “applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits.”6 The Respondent has been unable to meet its deadlines because of the Applicant. The objectives of the Tribunal cannot be met because of the Applicant.

6 Subsection 9(b) of the Administrative Review Tribunal Act 2024 (Cth).

1. Approximately 11 months have passed since the Application for Review was filed without the Applicant taking further steps. Approximately 6 months have passed since the Tribunal’s first direction without the Applicant taking further steps.

1. The Tribunal signalled to the parties that it was considering dismissing this proceeding under section 100 of the Administrative Review Tribunal Act 2024 (Cth) and scheduled a hearing to hear each party’s position. Section 100 provides that the Tribunal may dismiss a proceeding if the Applicant fails to comply with an order of the Tribunal in relation to the proceeding or to proceed with his application within a reasonable time.

1. I have heard from the Respondent and the Respondent supports a dismissal of these proceedings. I have also heard from the Applicant via Mr Gray. The Applicant submitted:

   (a)The latest delay was caused by Mr Gray’s serious illness.

(b)Mr Gray claimed that material had been filed at the Tribunal’s registry.

(c)Mr Gray claimed that Sigbox issues at the Tribunal’s registry was an issue.

(d)Mr Gray said he had no staff that could have assisted, despite one of his prior delays being due to staff issues. The inconsistency was put to Mr Gray by the Tribunal and not clearly explained.

(e)Mr Gray acknowledged that the Applicant was aware of the timeframes at issue.

1. When asked why the Tribunal had not heard anything prior to the expiry of multiple timeframes, Mr Gray submitted it had. He sought a delay to 20 February 2025, which I advised him was not going to happen. I advised Mr Gray he was missing the entire point of the proceedings, and there were no submissions relating to the late objection discretion despite the Respondent seeking to assist the Applicant by providing information relating to that discretion. I indicated 11 months had passed since filing, 6 months since the first direction and we had many failures to comply with directions.

1. While indicating that I was heading towards a dismissal, I reserved my decision to give the Applicant the benefit of a check of the Registry mailbox given Mr Gray’s submissions. That has been checked. The only material filed was Mr Gray responding to the non-compliance

hearing notice saying he would appear. Sigbox access has expired without Mr Gray filing anything. There are no issues with Sigbox, the issue is with prompt filing.

1. I have considered case law7 on the predecessor to section 100 of the Administrative Review Tribunal Act 2024 (Cth), subsection 42A(5) of the Administrative Appeals Tribunal 1975 (Cth). Those cases support the obvious point, the Tribunal expects its directions and orders to be complied with. While dismissal is a power of last resort, where there is repeated non- compliance by an applicant, that applicant can expect the proceedings to be dismissed by the Tribunal.

1. I find that 11 months and/or 6 months is sufficient time passing for me to conclude the Applicant in this matter has failed to comply with Tribunal orders within a reasonable time and also failed to proceed with the application within a reasonable time. I also find that the last relevant direction with a deadline of 17 January 2025 has passed without compliance or contact from the Applicant. This is part of a pattern of non-compliance. It too, on its own, is a failure to meet the Tribunal’s order within a reasonable time in the context of this matter.

1. As a consequence of the Applicant’s failure to comply with the Tribunal’s orders and/or to proceed with the application within a reasonable time, these proceedings are dismissed by the Tribunal pursuant to section 100 of the Administrative Review Tribunal Act 2024 (Cth).

1. As I noted at the hearing, if the Applicant wishes to proceed further the Applicant can seek an order for the reinstatement of these proceedings under section 102 of the Administrative Review Tribunal Act 2024 (Cth) or appeal this decision to dismiss the proceedings. That is for the Applicant to determine.

7 Rimmer and Comcare [2024] AATA 3387 [53]; Ziolkowski and Commissioner of Taxation [2024] AATA 2857; Berthelsen and Secretary, Department of Social Services [2024] AATA 1975 [14]; Abeysinghe Herath Mudiyanselage and Secretary, Department of Social Services [2024] AATA 1016; Charara v Commissioner of Taxation [2016] FCA 451; Andelman v Secretary. Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299; Guse v Comcare [1997] FCA 140; LVR (WA) Pty Ltd v Administrative Appeals Tribunal and Commissioner of Taxation [2012] FCAFC 90.