Jordan Topalides and Tax Practitioners Board
[2014] AATA 470
•5 June 2014
[2014] AATA 470
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/2003
Re
Jordan Topalides
APPLICANT
And
Tax Practitioners Board
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 5 June 2014 Date of written reasons 11 July 2014 Place Melbourne In accordance with the provisions of subsection 42A(5)(a) and subsection 42A(5)(b) of the Administrative Appeals Tribunal Act 1975, the application filed by Mr Topalides on 6 May 2013 is dismissed.
...........................[sgd].............................................
Deputy President J W Constance
CATCHWORDS
PRACTICE AND PROCEDURE – repeated non-compliance – application for review dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) sub-ss 41(2), 42A(5), 42D(8)
CASES
Beard v Telstra Corporation Limited (1999) 57 ALD 376
Re McGrath and Inspector-General in Bankruptcy (2011) 119 ALD 439
REASONS FOR DECISION
Deputy President J W Constance
INTRODUCTION
On 5 June 2014 I made the following decision in this matter:
In accordance with section 42A(5) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses the application by reason of the applicant’s failure within a reasonable time to proceed with the application and the applicant’s failure to comply with the direction made 6 May 2014.
The Tribunal’s direction of 6 May 2014 reads:
The Tribunal directs that on or before 21 May 2014 the applicant lodge with the Tribunal and serve on the respondent an amended statement of facts and contentions and statements of any proposed witnesses giving evidence at the hearing.
At the time I made the decision I gave brief oral reasons for that decision. I now provide more detailed written reasons.
THE HISTORY OF THE APPLICATION BEFORE THE TRIBUNAL
On 6 May 2013 Mr Topalides lodged an application to the Tribunal to review a decision of the Board to terminate his registration as a tax agent effective from 13 May 2013. On 9 May 2013 the Tribunal granted Mr Topalides’ request for a stay of the Board’s decision. The stay order read, in part:
Pursuant to section 41(2) of the AAT Act, the Tribunal orders that:
1.the operation and implementation of the Respondent’s decision of 8 April 2013 to terminate the applicant’s registration as a tax agent is stayed until the decision of the Tribunal on the application for review comes into operation or until further order of the Tribunal …
On 15 July 2013, with the consent of the parties, the Tribunal remitted the matter for reconsideration by the Board. On 19 September 2013 the Board affirmed its decision. Subsection 42D(8) of the Act provides that if a decision is affirmed on remittal the proceeding in the Tribunal continues.
Since 19 September 2013 the following relevant events have occurred:
·On 27 November 2013 the Tribunal directed that Mr Topalides give to the Tribunal and to the Board a summary of the evidence from all “lay” witnesses to be called at the hearing, all documents to be relied on and a Statement of Facts, Issues and Contentions. This was to be done by 28 January 2014.
·By letter of 28 November 2013 the Tribunal requested that within 10 days the parties file hearing certificates indicating their respective availability for the hearing of the application during the period January to March 2014. As neither party filed a certificate within the time requested the Tribunal wrote to them asking that certificates be filed no later than 18 December 2013.
·On 13 December 2013 the Board filed a hearing certificate. Mr Topalides did not respond to either of the Tribunal’s requests.
·By a notice issued 13 January 2014 Mr Topalides was notified that the hearing of his application had been listed for 12 March 2014.
·On 28 January 2014 Mr Topalides provided his own witness statement but did not provide a Statement of Facts, Issues and Contentions.
·On 18 February 2014 Mr Topalides advised the Tribunal that the solicitors who had acted for him since the application was lodged had ceased to act for him.
·On 20 February 2014, at the request of the parties, the Tribunal extended the time in which Mr Topalides was to file witness statements and documents to be relied on and a Statement of Facts, Issues and Contentions until 28 February 2014. Mr Topalides did not comply with this direction.
·On 4 March 2014 I held a telephone directions hearing at which Mr Topalides appeared. He was unrepresented. Mr Topalides confirmed that his previous solicitors had ceased to act for him and that he was in the process of instructing new solicitors. He requested that the date for hearing of 12 March 2014 be vacated. Mr Topalides informed me also that he wished to call witnesses at the hearing although he had not filed witness statements by those potential witnesses. I informed Mr Topalides that he could seek to have the hearing date altered if his new solicitors were not in a position to proceed on the date set.
·On 11 March 2014 the Tribunal received an email from Business Support Services (Legal) advising that that firm now acted for Mr Topalides. A request was made that the hearing listed for the following day be vacated. I then arranged for an urgent telephone directions hearing to be listed for 2pm on that day.
·On 11 March 2014 a telephone directions hearing was held at which Mr Topalides was represented by a solicitor from Business Support Services (Legal). I agreed to Mr Topalides’ requests and extended the time in which he was to file witness statements and a Statement of Facts, Issues and Contentions until 28 March 2014. A new hearing date of 23 April 2014 was set. I advised Mr Topalides’ solicitor that further extensions of time in which to file witness statements and documents may not be granted.
·On 11 March 2014 a direction was issued by the Tribunal which read, in part:
1.On or before 28 March 2014, the applicant give to the Tribunal and to the respondent:
(i)a statement of the evidence to be given by the applicant at the hearing;
(ii)a statement of the evidence to be given by each other witness intended to be called at the hearing;
(iii)copies of all reports, records and other documents on which the applicant intends to rely at the hearing;
(iv)a Statement of Facts and Contentions.
2.Should the applicant intend not to call any witnesses to give evidence at the hearing the applicant shall notify the Tribunal and the respondent of this in writing by close of business on 28 March 2014.
3.Should the applicant intend not to rely on any reports, records or other documents at the hearing the applicant shall notify the Tribunal and the respondent of this in writing by close of business on 28 March 2014.
Mr Topalides did not comply with this direction.
·On 31 March 2014 Mr Topalides’ solicitors requested an extension of time until 2 April 2014 in which to comply with the direction of 11 March 2014. The solicitors advised also that it had been agreed between themselves and the solicitor for the Board that the Board would file its Statement of Facts and Contentions by 16 April 2014.
·On 1 April 2014 the Tribunal issued a direction setting out the new timetable reflecting the agreement between the parties. The matter remained listed for 23 April 2014.
·On 2 April 2014 Mr Topalides’ solicitors filed a Statement of Facts and Contentions. No further witness statements were filed other than a copy of the statement of Mr Topalides which had been filed previously.
·By letter of 2 April 2014 Mr Topalides solicitors advised the Tribunal as follows:
The Applicant at this point in time will be calling the following witness’:
1) John Topalides
2) Vincent Cobiac
3) Theophanis Pitsounis
The Applicant shall be relying on the records and documents, apart from documents already filed, that will be subpoenaed from the Australian Taxation Office.
·The Board filed and served its Statement of Facts and Contentions on 16 April 2014 in accordance with the direction.
·On 10 April 2014 the Board’s solicitor wrote to Mr Topalides’ solicitors, stating in part:
Your client was directed to lodge and serve a signed statement of the evidence to be given by any witness at the hearing by 2 April 2014. We request that you provide us with a signed statement of the evidence of any witness who is to give evidence at the hearing by 4 pm on Monday 14 April 2014.
·Mr Topalides did not request the Tribunal to issue a summons as foreshadowed in his solicitors’ letter of 2 April 2014.
·On 23 April 2014 the matter was called for hearing. Counsel for Mr Topalides applied for an adjournment of the hearing on the basis that the Board’s Statement of Facts and Contentions was received on 16 April 2014. It should be noted that the Board filed and served this document on the date agreed between the parties and in accordance with the Tribunal’s direction of 1 April 2014. The Tribunal adjourned the hearing to a date to be fixed.
·On 23 April 2014 the solicitors for Mr Topalides requested the solicitor for the Board to provide additional documents. These were filed in the Tribunal and provided to the solicitors for Mr Topalides on 12 May 2014.
·On 6 May 2014 the Tribunal issued the following direction:
The Tribunal directs that on or before 21 May 2014 the applicant lodge with the Tribunal and serve on the respondent an amended statement of facts and contentions and statements of any proposed witnesses giving evidence at the hearing.
·On 14 May 2014 the Tribunal forwarded to the solicitors for Mr Topalides a notice that the application had been listed for hearing on 24 and 25 June 2014.
·Mr Topalides did not comply with the direction of 6 May 2014.
·On 27 May 2014 the Tribunal forwarded to the solicitors for Mr Topalides a notice that the matter had been listed for a non-compliance directions hearing on 5 June 2014. The notice was accompanied by a letter which read, in part:
Please note that the AAT may dismiss an application under section 42A(5) if an applicant fails within a reasonable time to comply with a direction. You may be asked to explain at the directions hearing why the application should not be dismissed.
·On 4 June 2014 the solicitor for the Board wrote to the Tribunal advising that it was the contention of the Board that at the directions hearing the Tribunal should dismiss Mr Topalides’ application pursuant to s 42A(5)(b) of the Administrative Appeals Tribunal Act 1975 on the basis that Mr Topalides had persistently failed to comply with Tribunal directions within a reasonable time.
·At the directions hearing on 5 June 2014 Mr Topalides was represented by Counsel.
LEGISLATION
Section 42A(5) of the Act provides:
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.
CONSIDERATION
Mr Topalides argument
At the directions hearing Counsel for Mr Topalides confirmed that it was proposed that two witnesses (in addition to Mr Topalides) would be called at the final hearing of the application. As at 5 June 2014 neither statements of these witnesses nor an amended Statement of Facts and Contentions had been filed.
It was put that Mr Topalides’ financial difficulties had caused the delay in complying with the Tribunal’s direction of 6 May 2014 and that previously the delay was caused by Mr Topalides’ solicitors failing to act in accordance with his instructions. Counsel was instructed that the financial difficulties had been resolved three days previously. Business Support Services (Legal) had acted for Mr Topalides since early March 2014.
The Board’s argument
The Board’s legal representatives attended the hearing on 23 April 2014 ready to proceed. They had not been advised previously that an adjournment was to be sought. An application was made on behalf of the Board that Mr Topalides’ application for review be dismissed at that stage. Mr Topalides had been warned by the Tribunal on that occasion that he was being given one last chance to comply.
It was argued that Mr Topalides had been given adequate opportunities to comply with the Tribunal’s directions and had failed to comply on five separate occasions.
Reasoning
The discretion to dismiss an application given by subsection 42A(5) is to be exercised with caution and only in clear cases of non-compliance.[1]
[1] Re McGrath and Inspector-General in Bankruptcy (2011) 119 ALD 439.
In this matter Mr Topalides has failed to comply with directions of the Tribunal on five separate occasions. At no time did Mr Topalides seek an extension of time to comply with a direction before he became non-compliant, even though on some of those occasions he was legally represented. In particular, he did not comply with the direction of 6 May 2014 within a reasonable time.
Counsel did not indicate when the witness statements of the proposed witnesses would be ready to be filed.
The only explanations for non-compliance given by Counsel lacked detail. Mr Topalides was present in the hearing room during the hearing of the application for dismissal but did not give evidence as to the circumstances of his non-compliance and failure to proceed. I asked Counsel if he wished to call Mr Topalides to give evidence and he replied that he did not.
I would not have dismissed Mr Topalides’ application by reason of his failure to comply with the direction of 6 May 2014 alone. However taking into account the repeated failures of Mr Topalides to comply with a series of similar directions I am satisfied that his application should be dismissed on this basis.
When considering a submission that an application to review should be dismissed on the ground of failure within a reasonable time to proceed, the Federal Court has held that an applicant should have been put to the test of having the application listed for hearing.[2] In this matter the application had been listed for hearing on two separate occasions and on both occasions Mr Topalides was not ready to proceed. In addition, as the matter was listed for a third time on a date less than three weeks after the hearing of the application to dismiss, I was not satisfied that it was likely that Mr Topalides would be in a position to comply with any further direction I may have made in time for the hearing to proceed on the days listed.
[2] Beard v Telstra Corporation Limited (1999) 57 ALD 376.
The Tribunal is under a statutory obligation to provide a mechanism of review that is fair, just, economical and quick. Ultimately if (despite the Tribunal’s best endeavours by issuing directions) an applicant’s conduct is preventing these objectives being achieved, the Tribunal will be left with no alternative than to dismiss an application in order to achieve them. It is particularly important that matters involving the review of action by regulatory authorities be dealt with quickly as the outcome of the review will in most cases, as here, affect other parties such as clients of the applicant.
I have also to ensure that both Mr Topalides and the Board are afforded procedural fairness. As Counsel for the Board pointed out, his client has been ready to proceed to hearing on both previous occasions. On one occasion Mr Topalides made an application for adjournment of which no notice was given. Previously the matter was adjourned on short notice. The time and costs which the Board has been required to spend on this application, through no fault on its part are relevant considerations in exercising the discretion to dismiss.
Taking into account Mr Topalides’ failure to proceed to hearing on the two occasions on which the application was listed for hearing and his repeated delays in complying with Tribunal directions, I am satisfied that he has failed within a reasonable time to proceed with his application.
Mr Topalides has failed to properly explain the reasons for his failure to comply with the direction of 6 May 2014 and his failure to proceed with the application. He was given the opportunity to give evidence as to his dealings with his solicitors and the instructions he had given them, but did not do so. I am satisfied that I should exercise the discretion given to the Tribunal to dismiss the application on both grounds.
CONCLUSION
In accordance with the provisions of subsection 42A(5)(a) and subsection 42A(5)(b) of the Administrative Appeals Tribunal Act 1975, the application filed by Mr Topalides on 6 May 2013 was dismissed.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance. ...........................[sgd].............................................
Associate
Dated 11 July 2014
Date(s) of hearing 5 June 2014 Advocate for the Applicant Mr I Hone Solicitors for the Applicant Business Support Services Solicitors for the Respondent Australian Government Solicitor
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