HWWK and Commissioner of Taxation (Practice and procedure) - [2025] ARTA 2156

HWWK and Commissioner of Taxation (Practice and procedure) [2025] ARTA 2156 (9 October 2025)
Applicant:HWWK
Respondent: Commissioner of Taxation
Tribunal Number: 2021/6080–6083

Tribunal:General Member J Dunne
Place:Melbourne
Date:9 October 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 failure to file outline of written submissions and allowed the time to lapse without notifying the Tribunal – Directions made months earlier –Applicant not able to proceed on hearing date and did not advise the Tribunal – Significant illness of director - Considerably aged matter – Engagement of legal advisers after non-compliance hearing scheduled - Application dismissed under section 100 of the Administrative Review Tribunal Act 2024 (Cth)
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
Administrative Review Tribunal Act 2024 (Cth), ss 9, 56, 100, 101, 102
Income Tax Assessment Act 1997 (Cth) ss 8-1, 355-205
Taxation Administration Act 1953 (Cth) Schedule 1, ss 284-75, 298-20
Cases
Charara v Commissioner of Taxation [2016] FCA 451
DSA Ventures Pty Ltd and Australian Skills Quality Authority [2025] ARTA 1902
DVFW and Comcare (Compensation) [2025] ARTA 117
Evans and Australian Capital Territory [2019] AATA 799
Gardner and Commissioner of Taxation [2025] ARTA 203
Grace Disability Services Pty Ltd as Trustee for the Gracemanor Services Trust and Commissioner of the NDIS Quality and Safeguards Commission [2025] ARTA 1299
Guse v Comcare [1997] FCA 961
Guse v Comcare [1997] FCA 1406
Guse v Comcare [2000] FCA 678
Hamon and CEO, National Disability Insurance Agency [2025] ARTA 226
NYKS and Commissioner of Taxation [2025] ARTA 1031
PRLT and National Disability Agency [2025] ARTA 993
Ragusa and Australian Postal Corporation [2025] ARTA 1774
Unger and the CEO, National Disability Agency [2025] ARTA 534
Walker and FedEx Express Australia Pty Ltd [2025] ARTA 1665
Statement of Reasons
ISSUE AND CONCLUSION

These proceedings were filed in the Tribunal on 30 August 2021.[1] The proceedings relate to the 2014, 2015, 2016 and 2017 income years (“the Relevant Period”) and an objection decision from the Commissioner dated 2 July 2021.
[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.
The proceedings relate to certain expenditure incurred by the Applicant described as consultancy fee expenditure, components and parts expenditure, and expenditure on a dispute in Hong Kong or ’Hong Kong expenditure’ in the Relevant Period. The expenditure at issue totals millions of dollars.
The issues involve considering:
(a)whether the consultancy fee expenditure and components and parts expenditure is R&D expenditure for which notional deductions arise under section 355-205 of the Income Tax Assessment Act 1997 (Cth) (“ITAA 1997”) in the Relevant Period;
(b)whether the Hong Kong expenditure is deductible pursuant to section 8-1 of the ITAA 1997 giving rise to available losses in the 2017 income year; and
(c)whether administrative penalties imposed on the Applicant on the basis of recklessness under section 284-75 of Schedule 1 to the Taxation Administration Act 1953 (Cth) (TAA) should have been imposed or should be remitted pursuant to section 298-20 of Schedule 1 to the TAA.
The proceedings are very aged. To an extent, the Tribunal records indicate that delay has arisen because the parties have engaged in both mediation and conciliation processes in an effort to seek to resolve the dispute.
The matter has not resolved, and I am faced with deciding whether to dismiss these proceedings pursuant to section 100 of the Administrative Review Tribunal Act 2024 (Cth) (“ART Act”) for failure to comply with Tribunal directions. I have considered the matter carefully, and on balance, after hearing from both parties in written submissions and oral submissions,[2] and after taking into account section 100 and relevant case law, I have decided to dismiss the proceedings.
[2] Applicant’s Written Submissions dated 3 October 2025 (“Applicant’s Submissions”), and the Respondent’s Written Submissions dated 2 October 2025 (“Commissioner’s Submissions”).
This was not an entirely clear-cut case due, in the main, to the illness of SF, one of the main witnesses and directors of the Applicant. For that reason, I considered it very carefully before coming to a final conclusion and I decided to dismiss the case for a number of detailed reasons. The reasons for my decision are set out below.
REASONS FOR DECISION
History of the proceedings
The Tribunal records indicate the following history:
(a)Orders were made for the proceedings to be heard together on 1 September 2021.
(b)An early case assessment conference was held on 25 October 2021.
(c)A case management directions conference was held on 2 December 2021 with directions issued to mediation in March 2022.
(d)Mediation took place on 10 March 2022. It was not successful.
(e)Further conferences were scheduled for 13 July 2022 and 22 February 2023 and there was non-appearance.
(f)A case management directions hearing was held on 16 March 2023 and directions were issued.
(g)Amended directions were issued by consent on 26 July 2023 – including for statements of facts issues and contentions and witness statements to be filed.
(h)Those amended directions were vacated on 7 September 2023, with new dates established for those filings.
(i)Those directions were then again varied on 19 October 2023.
(j)A case management directions hearing was held on 13 December 2023 and directions were issued to conciliation.
(k)The 19 October 2023 directions were then again varied on 19 December 2023.
(l)The 19 December 2023 directions were again varied on 15 April 2024.
(m)Conciliation took place on 18 April 2024. It was not successful.
(n)A further case management directions hearing was held on 12 June 2024 and directions were issued requiring the Applicant to file and serve a statement of facts, issues and contentions, and evidence (including witness statements) it intended to rely upon. The Applicant did not file the statement of facts, issues and contentions.
(o)On 28 June 2024 further directions were issued, in an effort to have this matter set down for hearing.
(p)A hearing was set down for three days commencing 3 February 2025 and this was vacated on 22 January 2025, due to a serious illness suffered by SF, a main witness for the Applicant in December 2024.
(q)A case management directions hearing was held on 17 April 2025 at which MF, a director of the Applicant, appeared and sought considerable time for the Applicant given SF’s health condition and his role as a main witness. That was granted to the Applicant with over 5 months provided.
(r)Following hearing certificates being filed the proceedings were set down for hearing for three days commencing 29 September 2025 and the parties were advised.
(s)On 12 May 2025, the Tribunal clarified its directions of 17 April 2025 which had been issued setting out timeframes to hearing but not specific dates for filings to hearing. The Tribunal specified that the next applicable timeframe was the Applicant’s Outline of Submissions on 1 September 2025, following that were specified dates for the Respondent’s Outline of Submissions and the Tribunal Book and other matters on specific dates.
(t)There was no filing at the Tribunal by the Applicant, and no contact with the Tribunal between May and late September 2025. The Tribunal was proceeding on the basis that the hearing would be held when set down.
(u)The Tribunal called a non-compliance hearing for 19 September 2025 10 days before the hearing date. There had been no contact from the Applicant and no filing of its outline of written submissions.
(v)On 15 September 2025, Ms Moorhouse Perks contacted the Tribunal by email suggesting that the Applicant may have engaged her.[3]
[3] Ms Moorhouse Perks’ email dated 15 September 2025 said, “We are currently reviewing the file prior to acceptance of the matter.”
(w)Despite not appearing to be formally engaged (it was unclear), Ms Moorhouse Perks filed submissions on 19 September 2025,[4] seeking new directions from the Tribunal[5] including to vacate the hearing which was to be held ten days later.
[4] Applicant’s Submissions dated 19 September 2025 (“Applicant’s First Submissions”).
[5] Applicant’s First Submissions pages 1-2 [1]-[7].
(x)On 19 September 2025 Ms Moorhouse Perks and MF appeared at the non-compliance hearing and both in written and oral submissions advised the Tribunal that:
(i)Ms Moorhouse Perks was contacted by the Applicant on 1 September 2025[6] and the Applicant’s Submissions on 3 October 2025 suggest she was formally engaged on 14 September 2025.[7] The submissions at the 19 September 2025 non-compliance hearing from Ms Moorhouse Perks appeared to be to the effect that formal engagement had not then occurred until funding was confirmed, so this was an inconsistency. What was clear was that she was not engaged prior to the Tribunal’s directions expiring.
[6] Applicant’s First Submissions page 3.
[7] Applicant’s Submissions [14].
(ii)The Applicant needed to confirm funding for legal fees under the Commissioner’s Small Business Funding Program before the Applicant could confirm the position in terms of its legal representation.[8]
[8] Applicant’s Frist Submissions page 3 [1].
(iii)The Applicant “needed further time” including for its advisers to review file material, brief counsel, determine how to conduct the hearing, consider whether settlement should be pursued, and consider SF’s ability to give evidence.[9]
(iv)It is notable that one of the Applicant’s submissions related to an issue about the tax file number allocated to the Applicant and whether it was also allocated to another entity. [10] It is hard to understand why this is an issue or relevant four years after the proceedings were filed and many years after the matter was dealt with by the Commissioner.
(v)The reason for the delay related to SF’s health – the Applicant’s First Submissions contained medical material describing this issue.[11]
(vi)Other legal representation had been sought in the period between April and September but had not eventuated. This also caused delay.
(vii)MF apologised to the Tribunal for the Applicant’s failure to meet the Tribunal’s directions but offered little explanation for the Tribunal not being contacted at all.
(viii)The hearing dates needed to be vacated.[12]
(y)The Tribunal had little choice and vacated the hearing dates, and gave the Applicant until 3 October 2025 to confirm its funding and to appear to further discuss non-compliance.
(z)The Tribunal advised the parties by email on 23 September 2025 and 24 September 2025 that it was considering the case law on dismissal and would be making its decision on 3 October 2025 at a further and more formal non-compliance hearing.
(aa)The non-compliance hearing was held on 3 October 2025 at which, following confirmation of funding, Mr Strong appeared for the Applicant, along with Ms Moorhouse Perks. Mr Dodds appeared at all times for the Commissioner alongside Mr White of the Australian Taxation Office.
[9] Applicant’s First Submissions page 3 [2}-[5].
[10] Applicant’s First Submissions page 2 [7].
[11] Applicant’s First Submissions – Enclosures.
[12] Applicant’s First Submissions [1].
Submissions from the parties
The Applicant’s Submissions focus on the difficulty arising from SF’s illness, which it says explains the non-compliance. The Applicant’s Submissions said:
(a)Dismissal of the proceedings should be a last resort from the Tribunal.[13]
(b)The Tribunal should defer its decision on dismissal until a health report on SF was issued around the end of October 2025.[14] That report had been commissioned on 1 October 2025.[15]
(c)The Commissioner may have changed its position as it had previously been content to defer the proceedings due to SF’s health.[16]
(d)The Applicant acknowledged that it did not comply with Direction 2 of the Tribunal’s 12 May 2025 directions and did not file submissions on 1 September 2025.[17]
(e)SF’s health showed some improvement but “[b]y June 2025 [MF] formed the view that [SF] was not sufficiently recovered to be grilled in the witness box.”[18]
(f)Between May and late August 2025 MF tried to engage solicitors to assist the Applicant and was unsuccessful, and contacted Ms Moorhouse Perks on 1 September 2025.[19] Mr Strong was engaged on 24 September 2025.[20]
(g)The Applicant’s review has merits as is demonstrated by the Commissioner’s acknowledgement in its Outline of Submissions dated 18 August 2025 (“Commissioner’s Outline”) that $39,990 should be allowed to the Applicant under section 355-205(1) of the ITAA 1997.[21] The Commissioner’s Outline describes this as a “typographical error”.[22] The Applicant’s case is that the merits are relevant when considering dismissal, and it cannot be said that its case is hopeless or bound to fail.[23] I record that I do not accept that $39,990 is a reason to suggest the Applicant’s case has strong merits when many millions of dollars of expenditure is at stake and I agree with the Commissioner’s submission on that point. I make no finding on the Commissioner’s “typographical error” rationale for this matter, and it is not my role in an interlocutory hearing to come to any view. In any event, as is demonstrated by the case law below, in my view, the merits of the Applicant’s case is not a major factor when considering the discretion to dismiss in section 100.
(h)The Applicant’s Submissions suggest that it may be reconsidering the consultancy fee expenditure and whether it will be pursued.[24]
[13] Applicant’s Submissions [4].
[14] Applicant’s Submissions [40], [43], [47].
[15] Applicant’s Submissions [37].
[16] Applicant’s Submissions [15].
[17] Applicant’s Submissions [19b], [20].
[18] Applicant’s Submissions [21].
[19] Applicant’s Submissions [22]-[25].
[20] Applicant’s Submissions [42].
[21] Commissioner’s Outline [38], [55a].
[22] Commissioner’s Outline [38].
[23] Applicant’s Submission [46b].
[24] Applicant’s Submissions [46c].
The Commissioner’s Submissions said:
(a)It was open to dismiss the proceedings under section 100 of the ART Act, and the Commissioner supported that decision if it was to be made.[25]
(b)The Applicant had used at least two different lawyers already, and the proceedings had not meaningfully progressed.[26] The Commissioner was funding the proceedings, and it was unclear why further time was needed to take even more legal advice.[27]
(c)The Commissioner is not in a position to settle the proceedings, and noted that income tax returns for 2022, 2023 and 2024 were long overdue.[28]
(d)No cogent reasons were given for the Applicant’s non-compliance with the Tribunal’s directions.[29]
(e)There were no attempts to engage with the Tribunal.[30]
(f)SF’s health issues was not an explanation for the Applicant’s non-compliance.[31]
(g)The Commissioner’s view is that the case is not meritorious, and the $39,990 concession made in the case is minimal compared to the overall sums in dispute which amount to many millions of dollars.[32]
(h)There is prejudice to the Commissioner, other litigants, and the Tribunal as hearing dates have been lost, costs incurred, and the finite resources of the Tribunal adversely impacted.[33]
[25] Commissioner’s Submissions [3], [41].
[26] Commissioner’s Submissions [7]-[18].
[27] Commissioner’s Submissions [36].
[28] Commissioner’s Submissions [30].
[29] Commissioner’s Submissions [31].
[30] Commissioner’s Submissions [33].
[31] Commissioner’s Submissions [37].
[32] Commissioner’s Submissions [38].
[33] Commissioner’s Submissions [39]-[40].
Legislation
The objective of the Tribunal is set out in section 9 of the ART Act.
The Tribunal must pursue the objective of providing an independent mechanism of review that:
(a)is fair and just; and
(b)ensures 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; and
(c)is accessible and responsive to the diverse needs of parties to proceedings; and
(d)improves the transparency and quality of government decision-making; and
(e)promotes public trust and confidence in the Tribunal.
The importance of section 9 of the ART Act is underlined by subsection 56(2), which provides that parties and their representatives must use their best endeavours to assist the Tribunal to achieve the objective in section 9.
Section 100 of the ART Act provides:
The Tribunal may dismiss an application made to the Tribunal if the applicant fails to do either of the following within a reasonable time:
(a)proceed with the application;
(b)comply with this Act or an order of the Tribunal in relation to the proceedings in relation to the application.
There is no dispute that the Applicant failed to comply with the Tribunal’s directions. Nothing was filed on 1 September 2025. Section 100 of the ART Act is enlivened. It is noted that section 100 is materially similar to subsection 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (repealed) which read:
(5) If an applicant for a review of a decision fails within a reasonable time:
(a)to proceed with the application; or
(b)to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.
Case law
In Guse v Comcare [1997] FCA 961 the dismissal of proceedings under subsection 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) was remitted to the Tribunal, as the Applicant had not been heard from and natural justice was a requirement.[34] An ex parte order to dismiss was held to not be consistent with subsection 42A(5). This is not an issue in the present case, as I have held two non-compliance hearings and heard from the Applicant and Respondent both in oral and written submissions.
[34] Subsequent appeals to the Full Federal Court and further proceedings in the Federal Court by the Applicant seeking a decision in the main issue in the proceedings in his favour were unsuccessful and the decision that natural justice was a requirement before the dismissal discretion could be exercised was upheld: Guse v Comcare [1997] FCA 1406; Guse v Comcare [2000] FCA 678.
In Charara v Commissioner of Taxation [2016] FCA 451 (“Charara”) the Federal Court set out principles for the Administrative Appeals Tribunal to consider when determining whether to dismiss the proceedings under subsection 42A(5). At [79] and [80] the Court set out two principles:
[79] The discretion must only be exercised sparingly and as a matter of “last resort” (emphasis added): Guse v Comcare …. at 291. That is because it involves denying an Applicant a hearing of the merits of the application. Because dismissal under s 42A(5) is a matter of last resort, the Tribunal must consider whether dismissal is the proper remedy, or whether it would be more appropriate to take some other course, such as adjourning the proceeding or making some other order to secure compliance: Guse v Comcare at 291. Again, a failure to do so would most likely constitute a misapplication of s 42A(5).
[80] In exercising the discretion, the Tribunal must also afford the Applicant procedural fairness (emphasis added): Guse v Comcare at 291. Procedural fairness would ordinarily require the Tribunal to give the Applicant the opportunity to make submissions as to why the discretion should not be exercised. That would include giving the Applicant an opportunity to put forward submissions concerning whether there had been a failure to comply with a direction and, if so, whether a reasonable time had elapsed since that failure. It would also ordinarily extend to giving the Applicant an opportunity to explain or justify any failure, or to advance any reasons why, despite the failure, the application should not be dismissed. Depending on the particular circumstances, it might also extend to giving the Applicant a further opportunity to comply or to remedy the default.

I turn to the recent case law on section 100. In DVFW and Comcare (Compensation) [2025] ARTA 117[35] (“DFVW”) the Applicant was required to undertake an examination by a medical practitioner appointed by the Respondent and for varying reasons refused to do so unless her specific demands were met. This went on for a significant period, up to two years. The Tribunal determined that the proceedings should be dismissed under section 100. The Applicant in the present case has not overtly refused to do anything, it has just failed to meet directions, so this case might be said to be able to be distinguished. However, the present case involves a deliberate decision not to comply with directions, and not to advise the Tribunal of anything.
[35] Le and Telstra Corporation Limited (Compensation) [2025] ARTA 1906 is to similar effect.
In Gardner and Commissioner of Taxation [2025] ARTA 203 (“Gardner”) there was repeated non-compliance by the Applicant, and the matter was dismissed under section 100 as a result. It might be said here that the Applicant did not engage in repeated non-compliance. The history of the present case shows Applicant non-compliance more than once (for example prior failures to file a statement of facts, issues and contentions), with the last non-compliance being particularly egregious given the hearing date and the lack of substantive reason for non-compliance. It is fair to say however, that it was not at the level of the repeated non-compliance in Gardner. Similarly, Walker and FedEx Express Australia Pty Ltd [2025] ARTA 1665 and Ragusa and Australian Postal Corporation [2025] ARTA 1774 each involve non-appearance by the Applicant and a repeated pattern of non-compliance. Those cases involve regular non-compliance.
In Hamon and CEO, National Disability Insurance Agency [2025] ARTA 226 (“Hamon”) at [28] in dismissing the case under section 100, the Tribunal counted the number of direction hearings, directions, conferences and other case events, the number of Tribunal members and staff that were required to be involved, and recorded that a hearing had been set down more than once for which the Applicant had been given leeway and additional time to prepare, the Applicant remained non-compliant, and a non-compliance hearing had been set down more than once. It was noted that the proceedings had been on foot for more than four years. Those matters are echoed in the present case. However, the Applicant in that case made scandalous allegations against the Tribunal, the Respondent and their respective officers and was obstructive and the case was also dismissed under section 101 of the ART Act as an abuse of process. This might be said to distinguish that case from the present case.
However, the present case involves thirteen sets of directions, four case management directions hearings, three other conferences (of which two were vacated due to non-appearance), a mediation, a conciliation, two non-compliance hearings, and two sets of hearing dates.[36] Non-compliance occurred immediately prior to a hearing date, without any contact with the Tribunal which prejudiced the Tribunal and the Commissioner in terms of cost and time. In my view, the decision in Hamon is relevant to the present case in spite of the factual differences because of the considerable resource already expended by the Tribunal on this case.
[36] For the avoidance of doubt, the Tribunal has no criticism of the February hearing dates being vacated as the Applicant approached both the Commissioner and the Tribunal beforehand, and SF’s stroke had only recently occurred.
In Unger and the CEO, National Disability Agency [2025] ARTA 534 (“Unger”) the Tribunal dismissed proceedings in the face of a submission that evidence from a medical practitioner was needed to determine how the Applicant could proceed. That evidence related to the Applicant herself. The Tribunal dismissed the proceedings under section 100 because the matter had been before the Tribunal for over two years, there had been ten directions hearings and four conferences. A further eight case events were vacated. On the day of a hearing the Applicant said she could not proceed. The Applicant had been given many opportunities to prepare her case. This case has similarities to the present matter.
In the present case, the Applicant is a company, and while the absence of SF could be problematic for its case, guidance could have been sought from the Tribunal as to how to manage that issue and still proceed with the hearing as set down. Medical evidence was not required for the Applicant to continue with its proceedings and medical evidence was not required for the Applicant to file its outline of written submissions by 1 September 2025 as directed by the Tribunal. Instead, the Applicant failed to meet the Tribunal’s directions, did not contact the Tribunal to advise it of anything, and ten days prior to the hearing when asked about non-compliance the Applicant submitted the hearing dates should be vacated as it was unable to proceed.
In PRLT and National Disability Agency [2025] ARTA 993 (“PRLT”) the Tribunal dismissed the proceedings under section 100 at [85]. Factors taken into account (at [48]-[52]) included the age of the case (more than 5 years), the number of case events that had taken place before the Tribunal, the Applicant’s failure to comply with the Tribunal’s direction on time or at all, and the short time available before the reviewable decision at issue lapsed. While that latter issue is not relevant to the present case, all of the other issues are. We are dealing with a case that is aged by four years, where multiple case events have occurred using the Tribunal’s resources, and where the Applicant has given no reasonable explanation for a failure to meet the Tribunal’s directions. When reaching its decision in PRLT, the Tribunal specifically considered the rationale for the failure to meet directions and the alternatives available. These matters are considered further below.
In NYKS and Commissioner of Taxation [2025] ARTA 1031 (“NYKS”) the Tribunal dismissed a proceeding which had suffered delays in the Applicant obtaining funding for legal advice and obtaining legal advice. The Tribunal considered all other options to proceed, and concluded that it had no confidence in the Applicant proceeding to obtain representation and moving his application to hearing. The Tribunal also considered the objects of the Tribunal as set out in section 9 of the ART Act. The Tribunal noted at [30] that in the three months provided to the Applicant he had done nothing to prepare or file the required material, and had only lately turned his mind to the Tribunal’s deadline and decided to let it pass without representation being engaged.
That holding is on all fours with the present case. Many months have been provided to the Applicant. It had a 1 September 2025 deadline. While I accept the Applicant tried to engage solicitors, it is notable that it was only well after the expiry of the Tribunal’s directions and in the face of a non-compliance hearing, that anyone was actually engaged. In my view this evidences the Applicant failing to take Tribunal deadlines seriously. In addition, Ms Moorhouse Perks attended the Tribunal on 19 September 2025 without engagement being confirmed (apparently) and without confirmed funding causing yet a further delay. The Applicant in this case, like NYKS, simply chose to do nothing and to allow the deadline in the Tribunal’s direction to pass without action. The impression given is that nothing was progressed between April and September 2025, and no outline of written submissions was even started in the many months provided by the Tribunal.
Further exacerbating that impression is the Applicant submitting that it was as early as June 2025[37] that MF felt that SF would not be able to give evidence, and this would be problematic to the hearing being viable. Yet nothing was done, neither the Commissioner nor the Tribunal were advised of any problem with proceeding with the hearing dates that were set down. Time was spent by the Tribunal preparing for hearing. Ms Moorhouse Perks appeared at the Tribunal and said on 19 September 2025 that more time was required to confirm representation, and to provide legal advice on basic issues, and Mr Strong submitted that there was the potential for one issue to be conceded. I do not criticise Ms Moorhouse Perks nor Mr Strong, I note the point to say we are restarting again and the Applicant had months in which it appears to have done nothing to progress these proceedings.
[37] Applicant’s Submissions [21].
In Grace Disability Services Pty Ltd as Trustee for the Gracemanor Services Trust and Commissioner of the NDIS Quality and Safeguards Commission [2025] ARTA 1299 (“Gracemanor”) the Tribunal dismissed the proceedings under section 101 of the ART Act, but recorded it would have dismissed them under section 100 in any event. The Tribunal recorded that the Applicant’s attitude to the Tribunal’s directions was problematic. A total lack of responsiveness to the Tribunal’s directions without substantive explanation was considered egregious. A failure to notify the Tribunal of problems in progressing the case was problematic. The Tribunal also questioned whether legal representation would have been engaged had the Tribunal not scheduled the non-compliance hearing. These matters are obviously relevant in the current case.
In DSA Ventures Pty Ltd and Australian Skills Quality Authority [2025] ARTA 1902 (“DSA Ventures”) the application was dismissed due to non-compliance with directions, and changing legal firms which each withdrew due to a lack of instructions. The Tribunal concluded that [25] there was “no prospect the Applicant would proceed with the matter” and an “adjournment was of limited utility.” That holding differs from the present case, where is a prospect of the matter proceeding. However, relevantly to the present case, in DSA Ventures the Tribunal noted at [22] and [23]:
Section 9 of the ART Act sets out the Tribunal’s objectives which includes that applications to the Tribunal are resolved as quickly and with as little formality and expense and the proper consideration of the matters before the Tribunal permits. In order to achieve this objective, it is important for the Tribunal to actively manage the progress of cases.
Section 56 of the ART Act requires that parties and their representatives conduct proceedings before the Tribunal in a manner that supports the Tribunal to achieve its objectives. [This] necessarily includes complying with the Tribunal’s directions.
Application to the current case
The explanation for the delay
As was noted in Charara, the explanation for the delay needs to first be considered. The Applicant says that the delay is due to SF’s illness, and also inferentially to legal advisers taking considerable time before deciding not to accept instructions from the Applicant.
I appreciate the health issue suffered by SF and provided many months to the Applicant in the Tribunal’s directions on 17 April 2025 and 12 May 2025 for that reason. I consider those many months to be a “reasonable time” in terms of section 100.[38] It is unclear to the Tribunal exactly why SF’s health stops the Applicant from preparing its outline of written submissions as was required by the Tribunal’s directions. The two are not connected. I also cannot see how SF’s health prevented the Applicant advising the Tribunal that it could not proceed on the hearing date nor seeking guidance from the Tribunal about the issue of SF as a witness so the hearing at the end of September 2025 could remain viable. SF’s health is no excuse. I do not consider this a valid rationale for the Applicant’s failure to meet the Tribunal’s directions when given months to do so.
[38] Per Evans and Australian Capital Territory [2019] AATA 799 at [76]-[78].
MF is a director of the Applicant. He should have acted. I reiterate that it is particularly troubling to receive a submission from the Applicant that in June MF was concerned about the unavailability of SF for the hearing, making the hearing potentially unviable, yet the Applicant did nothing. It did not contact the Tribunal to seek guidance about SF so the hearing could take place at the end of September 2025. The Applicant chose to allow the deadline in the Tribunal’s directions to pass, and it chose not to contact the Tribunal about the hearing date. It chose to prejudice both the Tribunal and the Commissioner as time and cost was spent preparing for hearing.
It seems to me that the real issue is that no lawyer was engaged to prepare the submissions the Tribunal ordered to be filed. The Tribunal records that it has little sympathy for the idea that engaging lawyers was the cause of the delay. Confirming funding from the Commissioner took very little time after the 19 September 2025 non-compliance hearing date, and months had passed in which that issue could have been easily resolved. There are many lawyers in the community, if one does not promptly respond within a brief period set by the Applicant, the Applicant should seek to engage another in order to meet the Tribunal’s directions. It had many months to do this. The Applicant had previously engaged other practitioners, and they could potentially have been returned to due to their familiarity with this matter for example. It is simply not good enough to suggest to the Tribunal that lawyers taking their time to consider whether to accept instructions was the cause of the delay. It was the Applicant’s lack of control of its own matter when it had months to progress it. All of this also demonstrates that the Applicant did not take the directions nor the Tribunal’s hearing date seriously. As is noted above, this is similar to the facts in DSA Ventures, NYKS, PRLT and Gracemanor where the proceedings were dismissed under section 100 of the ART Act. I also note this is not the first non-compliance by the Applicant as is demonstrated by the history set out above, although I acknowledge this case is not in the category of repeated non-compliance outlined in cases such as Gardner.
Particularly troubling is the fact that it took a non-compliance hearing to be scheduled for anyone to be engaged by the Applicant to represent it, particularly Mr Strong as counsel.[39] This was well after the date specified in the Tribunal’s directions and evidences that nothing was done in the months which had passed. My assessment is that the Applicant decided the hearing would not proceed due to SF’s illness, so that meant the Applicant would inevitably be given further time, and did not need to prepare written submissions as inevitably matters would vacate. The Applicant has demonstrated a problematic attitude to the Tribunal’s directions similar to Gracemanor, and this does not promote public confidence in the Tribunal as set out in section 9(e) of the ART Act. The Tribunal’s directions mean something. Failing to meet them enlivens section 100.
[39] As is noted above, it was also problematic to have Ms Moorhouse Perks appear on 19 September 2025 without (apparently) having accepted instructions and subject to funding being confirmed with the Commissioner.
The Applicant is obliged under section 56 of the ART Act to use its best endeavours to assist the Tribunal to meet its objectives in section 9. The nature of the Applicant’s non-compliance demonstrates it has made no efforts at all. In particular, section 9(b) cannot be met, this application cannot be “resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits.” The Applicant might say that SF’s health issue has caused the delay, and SF is required for the matters to be properly considered, but the reality is it is the Applicant that has caused the delay. It has not contacted the Tribunal. The issue relating to SF’s health and management of the proceedings on the hearing dates as set down could have been dealt with by contacting the Tribunal promptly. Instead, the Applicant has allowed resources to be allocated by the Tribunal to a hearing the Applicant knew could not take place and deliberately chose to ignore the deadlines set by the Tribunal. The Applicant has ignored the Tribunal’s directions. That is consistent with NYKS, and similar to DSA Ventures where cases were dismissed under section 100.
For those reasons I do not accept the Applicant’s explanation for its non-compliance.
Alternatives to dismissal
The Applicant submitted a two week delay to obtain a health report about SF, and then a decision on dismissal should be considered as an alternative.[40] I carefully considered this as an option. I did not consider it a viable alternative because I do not accept that this is the reason for the Applicant’s non-compliance, and I do not accept that doing this now[41] when many months have passed is consistent with the Tribunal’s objectives. In particular, this option is contrary to the objective to ensure resolution of matters before the Tribunal as “quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits” (section 9(b)) and contrary to promoting public confidence in the Tribunal (section 9(e)). Further, like Unger, I consider the issue of a medical report to be a red herring. It is not the reason for non-compliance; not engaging lawyers is. The Applicant has been given many months to prepare its outline of submissions, yet it has not done so, ignored the Tribunal’s directions, allowed the hearing date to remain in place until a non-compliance hearing was scheduled, and only engaged advisers in late September 2025. The Applicant has also only now considered a medical report to be an issue to pursue.
[40] Applicant’s Submissions [37], [40], [43], [47].
[41] Noting that a medical practitioner was only engaged on 1 October 2025. I note that the Applicant’s First Submissions had enclosures on this topic.
A further alternative is for the Tribunal to set a new hearing date, and issue more directions to that date and conduct more case events. Mr Dodds has indicated that the Commissioner has scheduling problems due to other commitments, and any new hearing date would be many months from now, certainly well into 2026. I am the constituted member for this matter, and I also have considerable availability issues because of the many other matters I am to hear up right until the end of April 2026. This alone demonstrates the prejudice the Applicant has caused. In addition, other litigants need to be considered. There are more than 100,000 applications for review being managed by the Tribunal. The Tribunal’s resources are stretched and finite. Its timetabling of events and hearings is critical. Other applicants could have been allocated dates earlier had this Applicant properly informed the Tribunal. The Applicant’s actions are contrary to the public interest. The Australian public rightly expect the Tribunal’s directions to be respected, and for Applicants to proceed to have their case heard promptly where publicly funded resources are allocated for that purpose.
Further, a large number of case events have occurred in this case.[42] This is similar to Hamon and Unger. Significant Tribunal resources have already been applied to this matter. Were the alternative of setting a new hearing date considered the Applicant would be asking for more events, more time, and more cost. This case involves the expenditure of public money, as Commissioner is providing funding for advisers for both itself and the Applicant in this case. Significant public funds have already been spent. We also face submissions from the third set of advisers to the Applicant to the effect that some issues might fall away, and more time is needed for legal advice to be provided to restart matters. While issues being conceded is to be encouraged, it is hard to understand how, four years later, we are in the position where further public money needs to be spent on the Applicant restarting its case with a third set of advisers. I have considered the inefficient expenditure of public money and being requested to spend even more in this case. In addition, I emphasise the age of this matter, as four years have passed since these proceedings were filed. The age of the matter was a factor taken into account in cases where proceedings were dismissed under section 100, such as NYKS and PRLT.
[42] Thirteen sets of directions, four case management directions hearings, three other conferences (of which two were vacated due to non-appearance), a mediation, a conciliation, two non-compliance hearings, and two sets of hearing dates.

When considering the alternatives to dismissal, I have considered the prejudice to the Applicant if these proceedings are dismissed. While the Applicant will have the opportunity to seek reinstatement of its case under section 102 of the ART Act or to appeal this decision should it choose to do so, it may not be able to proceed with a case that I assume for present purposes to be meritorious. I acknowledge the Applicant wishes to proceed with its case. I have also considered dismissal as being a “last resort” issue. I have also considered the prejudice to the Commissioner and the Tribunal which I noted above.
Decision on the alternatives
While I am sympathetic to SF in particular, I consider the Applicant’s non-compliance to be egregious. I do not accept the Applicant’s explanations for its failure to meet directions or progress its case. I have concluded that the alternatives to dismissal are not viable for a four year old case where considerable public expenditure, resource, and time has already been expended. I consider other Applicants that are prepared to meet directions and proceed with hearing dates have been adversely impacted and the Commissioner and the Tribunal were prejudiced. That would be exacerbated by allowing this to continue.
I consider the Applicant to have ignored the Tribunal’s directions and simply allowed months to pass and deadlines to expire without doing anything substantive to progress its case on the basis the hearing would be inevitably vacated and rescheduled. This is demonstrated by the late engagement of advisers well after directions had expired. Nothing was done to seek guidance from the Tribunal about SF as a witness from the Tribunal despite MF knowing this to be an issue in June. The hearing could well have been viable. The Applicant took the risk of section 100 being applied, and bears the consequences. In my view, allowing this case to proceed further would be contrary to the Tribunal’s objective in section 9 of the ART Act.
CONCLUSION
As a consequence of the Applicant’s failure to comply with the Tribunal’s orders and/or to proceed within a reasonable time, these proceedings are dismissed by the Tribunal pursuant to section 100 of the ART Act.
As is noted above, if the Applicant wishes to proceed further, the Applicant can seek an order for the reinstatement of these proceedings under section 102 of the ART Act or appeal this decision to dismiss the proceedings. That is for the Applicant to determine.
……………………[SGD]…………………………….
Dated: 9 October 2025

Date of hearing: 3 October 2025

Counsel for the Applicant:

Solicitors for the Applicant

Counsel for the Respondent:

Mr J Strong

Ms K Moorhouse Perks

Mr N Dodds

Solicitors for the Respondent:

ATO Review and Dispute Resolution