KBHN and Commissioner of Taxation (Practice and procedure) - [2025] ARTA 970

KBHN and Commissioner of Taxation (Practice and procedure) [2025] ARTA 970 (23 June 2025)

Applicant/s:  KBHN
Respondent:  Commissioner of Taxation
Tribunal Number:                2017/4047-4052

Tribunal:Senior Member Lye
Place:Brisbane
Date:23 June 2025
Decision:The Tribunal exercises its discretion to reinstate the applications under s 102(9) of the Administrative Review Tribunal Act 2024 (Cth) and makes further directions as set out in these reasons.

.......................[Sgnd]........................

Senior Member J Lye

Catchwords

Practice and procedure – application for reinstatement – proceedings dismissed under section 100 of the Administrative Review Tribunal Act 2024 for failure to comply with Tribunal directions – whether application dismissed in error – self-executing directions – Tribunal’s discretion to reinstate – allegation of ultra-vires – procedural fairness – Bhardwaj – application for confidentiality orders – taxpayer’s right to have a hearing in private – costs

Legislation
Administrative Appeals Act 1974 s 42A
Administrative Review Tribunal Act (2024) (Cth) – s 9; s 55; s 56; s 69; s 69; s 70; s 71; s 100; s 102
Income Tax Assessment Act 1936 (Cth) – s 8; s 36
Taxation Administration Act 1953 (Cth) – s 14ZZE; s 14ZZJ; s 14ZZK

Cases
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Commissioner of Taxation and Dalco (1990) 168 CLR 614
CP v Director-General of Community Services Directorate and Ors [2016] ACTSC 394
CVMW and Commissioner of Taxation (Taxation) [2023] AATA 4039
De Simone v Commissioner of Taxation [2017] AATA 1005; AAR 300
DFYN v Commissioner of Taxation [2022] AATA 3991
Djuric v Commissioner of Taxation (Practice and Procedure) [2025] ARTA 469
Federal Commissioner for Taxation v Futuris Corporation Limited [2008] HCA 32; (2008) 237 CLR 146
Gashi v Federal Commissioner of Taxation [2013] FCAFC 30; (2013) 209 FCR 301
Goldie v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 367; (2002) 121 FCR 383
Gregory v Comcare (Compensation) [2023] AATA 4880
Hearn v Street (2008) 235 CLR 125
JTBJ and Secretary, Department of Social Services (Social security) [2025] ARTA 464 (22 April 2025)
La Mancha Africa S.A.R.L. Federal Commissioner of Taxation [2021] FCA 1564
Lenijamar Pty Ltd v A.G.C (Advances) Ltd [1990] 22 FCR 364; 96 ALR 197
Mango Boulevard Pty Ltd v Spencer and Ors [2010] QCA 207
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR
War Pensions Entitlement Appeal Tribunal ex parte Bott (1933) 50 CLR 228
Re Bates and Comcare [2015] AATA 199
Re Lenijamar Pty Ltd & Ors v AGC (Advances) Ltd [1990] FCA 520
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Re QANTAS Airways Ltd v Deputy Commissioner of Taxation (1979) 2 ALD 291
Rogers and Australian Securities and Investments Commission [2024] AATA 3161
The Owners – Strata Plan 94800 v Aushome Construction Pty Ltd & Anor [2025] NSWDC 143

Secondary Materials

Administrative Review Tribunal (Common Procedures) Practice Direction 2024

Explanatory Memorandum to the Administrative Review Tribunal Bill 2023 (Cth)

Statement of Reasons

These reasons determine an application brought by the Applicant (KBHN), for reinstatement of his proceedings in the Tribunal (the review proceedings). That application is opposed by the Respondent, the Commissioner of Taxation (the Commissioner).
KBHN is a taxpayer who has sought review of an objection decision supporting assessments by the Commissioner for income tax, goods and services tax and administrative penalty across the income years 2010 to 2015.
Since November 2024, KBHN has been assisted in the review proceedings by his accountant (the accountant),[1] and Michael Henry counsel (collectively, his advisors). He was previously represented by another law firm (the former solicitors). [2]
[1] A firm of chartered accountants.
[2] The statutory declaration [5]-[8].
The review proceedings were listed for final hearing for 5 days commencing on 25 August 2025. However, they currently stand dismissed under s 100 Administrative Review Tribunal Act (2024) (Cth) (ART Act) effective as of 4pm AEST, 22 April 2025. That dismissal occurred because KBHN’s advisors failed to comply with a self-executing direction issued by the Tribunal on 8 April 2025 (the direction). The direction required KBHN to file his Statement of Facts, Issues and Contentions (SFIC) and any evidence (collectively, his material) by 4.00pm on 22 April 2025.
KBHN seeks reinstatement of the applications on 2 grounds. First, he argues the Tribunal dismissed the review proceedings in error under s 102(5) ART Act and should exercise discretion to reinstate them. In the alternate, he submits it is appropriate for the Tribunal to exercise its discretion to reinstate them under s 102(9) ART Act.
For the reasons which follow, I have decided to exercise my discretion under s 102(9) ART Act to reinstate them on certain conditions. These follow confirmation from Mr Henry that the review proceedings can proceed to hearing commencing 25 August 2025, as originally intended and that he is still available to appear. The orders I have made below, reinstate that listing and foreclose any further delays in the management of the applications.

BACKGROUND

It is necessary to address the background to the reinstatement application in some detail.
KBHN’s originating applications to the Tribunal were lodged on 29 June 2017 (almost 8 years ago). In 2017, KBHN was facing criminal charges on issues which the Tribunal was satisfied had tangential connection to his tax dispute. On 27 July 2018, the Tribunal directed that the applications be placed in abeyance pending the finalisation of the prosecution. There they remained for some years, subject to updates from KBHN. It seems that there was some delay in his former lawyers receiving instructions from KBHN/his criminal lawyer in the early stages of the applications, such that it took more than 12 months for the Tribunal to be satisfied the applications should be placed in abeyance.[3] There was some affidavit evidence before the Tribunal explaining this delay, including the delay in receiving instructions from KBHN.[4] These are matters of background interest, given the conduct I am about to describe, but they are not determinative of this application which concerns KBHN’s failure to file his material since July 2024.
[3] Tribunal direction dated 27 July 2018.
[4] KBHN failed to update the Commissioner and the Tribunal as to the progress of the prosecution, causing his former solicitors to advise the Tribunal in an affidavit of their unsuccessful attempts to obtain instructions from KBHN. Affidavit of his former solicitor dated 23 October 2017 (the solicitor affidavit).
The review proceedings were reactivated in July 2024. Since that time, the Tribunal has struggled to case manage them to hearing due to KBHN’s non-compliance with directions.
On three occasions in 2024 (19 July 2024, 4 November 2024, and 19 December 2024), the Tribunal made directions for the filing of KBHN’s Statement of Facts, Issues and Contentions (SFIC) and evidence (collectively, the material). On each occasion, KBHN’s material was not filed.[5]
[5] Transcript page 2. All references to transcript unless otherwise cited are references to the directions hearing on 8 April 2025.
KBHN contends but I do not accept, that it is relevant that he did not personally attend the directions hearing on 19 July 2024. He contends that his former solicitors (who appeared on his behalf) did not send him a copy of the directions made by the Tribunal following that hearing. The Tribunal was not told exactly when his former solicitors ceased to act for KBHN but notes a change of representation was not communicated to the Tribunal until November 2024.[6] The accountant was engaged at that time and said KBHN engaged him to assist because he did not wish to continue to pay his former solicitors.[7]
[6] The statutory declaration [5]-[8].
[7] Ibid [5]-[6].
I have inferred from the evidence that except for a brief period in November 2024 KBHN has been represented since 2017.
Since December 2024, the Tribunal has closely case managed the proceedings by following up the parties and listing directions hearings where and when it identified non-compliance with its directions.
A directions hearing was held on 19 December 2024, after the commencement of the ART Act. The Tribunal attempted a reset of the proceedings at this directions hearing. Both parties attended, represented by experienced counsel. The Tribunal made detailed case management directions in consultation with the parties and in doing so, attempted to manage the proceeding through to agreed hearing dates, commencing 25 August 2025. The resulting directions gave KBHN (by his counsel’s request and the Commissioner’s consent) a very generous period in which to lodge any requests for summons (by 31 January 2025) and to file his material (on or before 28 March 2025). The Commissioner consented to the timetable proposed.
The time passed. No requests for summons were received by the Tribunal by the due date (or since) and then KBHN did not file his material by 28 March 2025. Once again, neither KBHN nor those advising him sent correspondence to the Tribunal ahead of the due date, seeking an extension of time in which to comply with those directions and they also did not write to the Tribunal on or after the due date acknowledging his non-compliance.
The Tribunal, having identified KBHN’s non-compliance, set the application down for a directions hearing on 8 April 2025 (the 8 April directions hearing). A direction was also issued to KBHN for an affidavit to be filed by the accountant explaining the reasons for KBHN’s non-compliance with the Tribunal’s directions and the steps taken in the proceeding on behalf of KBHN since 19 November 2024. That affidavit was due to be filed and served on the Commissioner by 7 April 2025. It should have alerted KBHN’s advisors that the Tribunal was concerned about non-compliance.

The 8 April 2025 directions hearing

Both KBHN and the Commissioner were again represented by experienced counsel at the 8 April 2025 directions hearing. Two affidavits from the accountant were filed prior to the hearing together with proposed confidentiality orders.[8] The first affidavit (filed 2 June 2025) addressed KBHN’s concerns for his safety (hearsay evidence). The second affidavit (filed in breach of the Tribunal’s direction, just one hour before the 8 April 2025 directions hearing) purported to address KBHN’s non-compliance with the Tribunal’s directions. It contained some irrelevant and scandalous commentary and observations about the Commissioner which were not relevant to these proceedings or the matters to be determined at the 8 April 2025 directions hearing. It separately suggested that KBHN had issued correspondence to the Commissioner and the Tribunal ahead of the due date for KBHN’s material, foreshadowing it would be late.[9] Neither the Commissioner nor the Tribunal had a record of any such correspondence.[10]
[8] Affidavit affirmed 4 April 2025 (the first affidavit). Affidavit affirmed 8 April 2025 (the second affidavit).
[9] Second affidavit [10].
[10] Transcript page 9.
The second affidavit also informed the Tribunal that KBHN’s material was well progressed but suggested further documents were expected to be received from KBHN. The accountant estimated that a further extension of time would be required to file KBHN’s material (he estimated 2 weeks).[11]
[11] Second affidavit [12]-[19].
The exchanges which occurred between the Tribunal and counsel for KBHN (Mr Henry) at the 8 April 2025 directions hearing addressed directly, the Tribunal’s concerns about KBHN’s continuing non-compliance and the proposed next steps. [12]
[12] On 16 June 2025, the Tribunal directed that a copy of the transcript be made available to KBHN.
At the commencement of the 8 April 2025 directions hearing, the Tribunal referred to each of the prior occasions on which KBHN had been non-compliant with the Tribunal’s directions and asked Mr Henry to explain why, in the circumstances, the application should not be dismissed.[13] Having heard from Mr Henry, counsel for the Commissioner, Mr Brennan was given an opportunity to make submissions in response. The Commissioner took the Tribunal through the second affidavit and contended it to be ‘long on content and very short on detail’. Despite his concerns, the Commissioner told the Tribunal that he was prepared to afford KBNH one final chance to file his material.
[13] Transcript page 2.
The Tribunal took the opportunity itself to read the second affidavit (which had only just been made available) and then advised the parties of the proposed next steps:[14]
SENIOR MEMBER: Thank you. What I am proposing to do is exactly as the respondent has suggested. Is to give the applicant a very short period to finalise his evidence and statement of facts, issues and contentions. And I am proposing to give – and I will hear from the parties on this – I am proposing to give the applicant until 22 April to do that. I am also proposing to put in place some guillotine orders, Mr Henry. So if it is not done, the application will be dismissed as of the date that there is non-compliance on the next occasion. And I do that, I propose that mindful of what I am hearing today.
It sounds to me that, for whatever reason, there needs to be an appreciation including by your client, that there are consequences for not complying the tribunal’s directions. And that it is not acceptable for this matter to drag on. So that the effect of the guillotine order will be automatic. There will be no need for any application by the respondent. And no further directions hearing called by the Tribunal. It will take effect as of 4 pm on the day on which the evidence is due, if it is not filed. Now, as to the 22nd, it is a short period, but at least I think that is giving you two weeks.
Mr Henry: That would be, I understand that is acceptable to us and we believe that we can get our material finalised in that period. I do not necessarily accept Mr Brennan’s characterisation of [the] affidavit, but it is not material that speaks for itself in my view. In any event, two weeks would be more than adequate. I am instructed that that will give us the opportunity to do anything that needs to be done.
[emphasis added]
[14] Ibid pages 11-12.
The following further exchange also occurred between the Tribunal and Mr Henry and the accountant prior to the conclusion of the 8 April 2025 directions hearing:[15]
SENIOR MEMBER: All right. And then we are leaving the hearing in place. Mr Henry and[the accountant] , it is important that you make clear to your client what the consequences of these orders are.
[the accountant]: Of course, certainly. We will organise a conference to do that, this afternoon or tomorrow morning.
SENIOR MEMBER: And obviously I am not naïve about the fact that I am sending messages to parties in these matters with these sorts of directions and orders. And so, you should feel free to take those messages. This is a consistent course of conduct that is required by the tribunal. It is not acceptable to ignore Tribunal directions or orders. It is not acceptable to fail to comply. That will not be accepted. So there should be no surprises here. And I think that that message was well and truly conveyed by the President of the Review Tribunal.
Mr Henry: “certainly”.
[emphasis added]
[15] Transcript pages 14-15.
At the conclusion of the 8 April 2025 directions hearing, the Tribunal made directions for KBHN to file his SFIC and evidence on or before 4.00pm 22 April 2025. As foreshadowed, the Tribunal made the direction self-executing. The preamble to the directions also set out for the parties the prior instances of non-compliance by KBHN.
The directions were promptly dispatched to the parties.

KBHN is late filing his material

On 22 April 2025, the Tribunal received KBHN’s material by two emails delivered at 5.39pm and 6.06 pm, respectively. No prior correspondence was received by the Tribunal from the accountant seeking an extension of time.
Minter Ellison wrote to the Tribunal on 24 April 2025 seeking to confirm the application stood dismissed as of 22 April 2025. The Tribunal, following an audit of its logs, issued orders and correspondence to the parties confirming the applications stood dismissed for non-compliance with the orders issued on 8 April 2025. The Tribunal drew KBHN’s attention to s 102 ART Act.
On or about 2 May 2025, the accountant’s assistant (Ms H) wrote an undated letter to the Tribunal making application for reinstatement of the application. She attached the statutory declaration (witnessed by her)[16] and written submissions from Mr Henry addressing the reinstatement application.
[16] When it was put to him directly, the accountant conceded to the Tribunal on 20 June 2025 that Ms H did not have the necessary authority to witness the statutory declaration. The Commissioner did not object to the Tribunal relying on the evidence in the statutory declaration but wanted it noted that the document had been filed with the Tribunal purporting to be properly executed. See transcript of hearing 18 June 2025, page 4.
The Tribunal then listed the application for an interlocutory hearing which took place on 18 June 2025.
The statutory declaration contained further scandalous allegations about the Commissioner which are not relevant to this application or the review proceedings.[17] It also contained the following concessions from the accountant to which I have had regard:
[17] Rogers and Australian Securities and Investments Commission [2024] AATA 3161 (30 July 2024) [20].
a.He is not a qualified lawyer, and this is his first matter before the Tribunal;
b.Despite having attended the 8 April 2025 directions hearing, he did not understand the effect of the self-executing direction. He variously stated that he mistakenly thought the orders required KBHN’s SFIC and evidence to be filed by 4.30pm (sic) but later in his evidence said he thought he could file up to close of business on 22 April 2025;
c.He contended he realised his error about the direction on 21 April 2025 when he was warned about it by Mr Henry;
d.When he agreed to assist KBHN in November 2024, he had assumed the case was further progressed than it was. Consequently, he inadvertently led Mr Henry to believe in November 2024 that the matter was better prepared than it was;
e.On 11 March 2025, Mr Henry had sent him an email (not exhibited) suggesting it be sent to Minter Ellison. He claimed that email proposed (in general terms) an extension to the directions for the filing of the Applicant’s material (due 28 March 2025). The accountant claimed to have forwarded the email to Ms H (or so he thought) but it appears not to have been received by her and he conceded it was not issued to Minter Ellison.
f.The accountant said that ‘in April’ he and Mr Henry had received several bundles of documents from KBHN, and the final bundle was only received on 17 April 2025. He said this delay was occasioned by KBHN’s need to approach third parties for the documents. He did not explain why the records were not previously obtained but did suggest he had requested documents in January 2025;[18]
[18] Second affidavit [8].
g.Effectively, given delays in the receipt of documents, he said Mr Henry had to complete a 400-paragraph affidavit in 3 days. He did not explain why the Tribunal had previously been told the material was well-progressed. He claimed substantial additions/amendments to the SFIC were also required which delayed completion of the documents;
h.He claimed there were also scanning delays with the exhibits to KBHN’s affidavit and delays in getting the affidavit and exhibits checked and witnessed. He said Mr Henry had warned him it would take a full day for the scanning and checking to occur; and
i.by 22 April 2025, he was aware there were likely to be substantial delays in scanning checking and filing but he thought he could still file the material by close of business. He said that he ‘didn’t think there would be a problem if it was submitted by close of business’;[19]
j.The affidavit was sent by email to the Tribunal and the Respondent at 5.39pm. The SFIC was filed by email at 6.03pm. The accountant said he thought he and Mr Henry had used their best efforts, and the outcome was unjust given the ‘slight lodgement delay’.[20]
30. Ms H’s application for reinstatement provided further insight into the status of the material filed on 22 April 2025 and heightened the Commissioner’s concerns about potential prejudice should the applications be reinstated. She said:[21]
Based on the reasonably open inferences that can be drawn from all the available evidence, the effect of the order dismissing my client’s application (as sought by the Commissioner) has automatically terminated [KBHN]’s trial listing and all the existing directions made to date (except for the directions giving effect to the election made under 14ZZE and 14ZZJ).
I will therefore need to inquire about Mr. Henry’s availability to appear at any further or future hearing or trial.
I know that he only has limited time available in his diary, and I strongly suspect that after the order was made his previous availability for trial was promptly `taken up by other instructors in other matters.
…….
Other concerns have arisen since we have started acting that will require us to seek leave to issue subpoenas and or to bring applications under subdivision B of the ART Act, and so the previous directions are no longer fit for purpose.
[19] statutory declaration [51].
[20] Ibid [54].
[21] Reinstatement application (undated).

The Commissioner understandably inferred from this correspondence that KBHN and his advisors were signalling a reset of the entire matter, should it be reinstated.

The Interlocutory hearing 18 June 2025

Before the Tribunal on 18 June 2025, were the statutory declaration, Mr Henry’s written submissions, Ms H’s covering letter (the application) and Mr Brennan’s written submissions for the Commissioner. The Tribunal also exhibited the affidavit of his former solicitor dated 23 October 2017.
That hearing lasted 2.5 hours and both parties had an opportunity to make oral submissions.
At the conclusion of the hearing, Mr Brennan requested the parties be afforded an opportunity to provide brief written submissions on the application of the recent decision of the President of the Tribunal in JTBJ and Secretary, Department of Social Services (Social Security) [2025] ARTA 464 (22 April 2025) (JTBJ). The parties were directed to provide targeted submissions on that decision by 10am on 20 June 2025. The time provided was necessarily short given the nature of the submissions and the urgency of the application.
KBHN’s advisors were also given leave of the Tribunal to address whether he had any objection to the former solicitor affidavit being an exhibit for the purposes of the interlocutory hearing conducted on 18 June 2025 and if so the reason/s for that objection.
Both parties filed supplementary submissions on 20 June 2025. KBHN’s submissions were filed twice on 20 June 2025. The second version was described by Mr Henry in an email to the Tribunal as a ‘corrected’ version. Mr Henry wrote, ‘I was ionly (sic) able to address part of what we intended to because of the tight timeframe.’[22]
[22] Email correspondence from MJ Henry to the Sydney Registry of the Tribunal and Minter Ellison received at 10.04am, 20 June 2025.
Both versions of KBHN’s supplementary submissions purported, without notice, to address matters which were outside the leave granted to the parties. The corrected version contained additional information to the original. There were also sections of both versions which contained matters which were not in evidence before the Tribunal on 18 June 2025 and to which the Commissioner had not had an opportunity to respond. They appeared to attempt to impermissibly ‘relitigate’ all the matters which were the subject of the hearing on 18 June 2025 in part relying on new evidence and without notice to the Commissioner.
It is unacceptable for a represented party to take address matters via submissions after a hearing without leave of the Tribunal.[23] Such conduct can lead the Tribunal into procedural error. It also runs contrary to the Tribunal’s Practice Directions [6.5].
[23] See for example the observation made by Abadee DCJ in The Owners – Strata Plan 94800 v Aushome Construction Pty Ltd & Anor [2025] NSWDC 143 [176]. See also the observations made by the Tribunal in Campbell Irwin v Military Rehabilitations and Compensation Commission [2008] AATA 601 about the inappropriateness of lodgement of submissions post hearing and without leave of the Court/Tribunal [26].
In reaching a decision of the applications, I have referred to the ‘corrected’ version of these submissions in respect of the matters in it which fall within the scope of the direction issued on 18 June 2025.

THE RELEVANT LEGISLATIVE PROVISIONS AND AUTHORITIES

Dismissal and reinstatement

Sections 100 and 102 ART Act relevantly provide:
100 Tribunal may dismiss application if applicant fails to comply with order etc.
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 proceeding in relation to the application.
102 Reinstatement of application
When this section applies
(1)    This section applies if the Tribunal dismisses an application.
…
Party may apply for reinstatement if application dismissed in error
(5) A party to the proceeding in relation to the application may apply to the Tribunal for reinstatement of the application on the grounds of error within 28 days after the party receives notice that the application is dismissed (or such longer period as the Tribunal, in special circumstances, allows).
(6) If a party applies under subsection (5) and the Tribunal considers that the application was dismissed in error, the Tribunal may reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.
Parties can apply for reinstatement in other specified circumstances
(7)     If the application is dismissed under:
…
(c) section 100 (Tribunal may dismiss application if applicant fails to comply with order etc.);
a party to the proceeding in relation to the application may apply to the Tribunal for reinstatement of the application within 28 days after the party receives notice that the application is dismissed (or such longer period as the Tribunal, in special circumstances, allows).
(8) However, the applicant cannot apply if the application is dismissed under section 95 (applicant may withdraw application).
(9) If a party applies under subsection (7) and the Tribunal considers it appropriate to reinstate the application, the Tribunal may reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.
KBHN originally lodged his applications with the Administrative Appeals Tribunal (AAT). On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review associated with these applications not already completed by the AAT. This interlocutory decision and statement of reasons is made by the Tribunal.
Some of the authorities which are relevant to determination of the reinstatement applications under s 102 ART Act, refer to the previous equivalent provision (s 42A Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)).
In JTBJ, the President of the Tribunal observed the similarity between the 2 provisions.[24]
[24] [24].
The Explanatory Memorandum to the Administrative Review Tribunal Bill 2023 (Cth) (the Explanatory Memorandum), also relevantly states:[25]
This clause is equivalent to 42A(8), (8A), (9), (10) and (11) the AAT Act. It has been altered to enable the Tribunal to reinstate an application on its own motion. This would allow the Tribunal to act where it becomes aware of circumstances that warrant reinstating the matter.

Self-executing directions

[25] [651].

In both De Simone v Commissioner of Taxation [2017] AATA 1005,[26] (De Simone) and DFYN v Commissioner of Taxation [2022] AATA 3991 (DFYN), the Tribunal considered the circumstances in which self-executing directions should be deployed by the Tribunal. In both cases, the Tribunal observed that such directions are necessary tools for case management given the Tribunal is largely a no cost jurisdiction, but should be used selectively and carefully, in cases where there has been a history of non-compliance and other measures have been tried without success.[27]
[26] AAR 300.
[27] De Simone [12]; DFYN [10].
Both parties also referred the Tribunal to Mango Boulevard Pty Ltd v Spencer and Ors [2010] QCA 207 (Mango Boulevard) per Fraser JA. In Mango Boulevarde Fraser JA confirmed the immediate and automatic operation nature of the self-executing orders made in that case.[28]
[28] Mango Boulevard [100]-[103]. In DFYN, the Tribunal also confirmed that by virtue of the operation of the self-executing order made, the proceedings ‘stood dismissed’ as at the date and time the order took effect.[28]
In both De Simone and DFYN, the Tribunal also emphasised the strict operation of self-executing directions.[29]
[29] DFYN [10]-[12]; De Simone [13].
Section 49 ART Act gives the Tribunal broad scope in terms of its procedure from case to case. Section 79 ART Act provides that the Tribunal ‘may by order give directions’. The scope of the directions which the Tribunal can give are broad and are not limited to the matters listed in subsections (2) and (3). Further, the Tribunal’s scope to give directions is not limited by s 55 ART Act (right to present case). To the extent there is any doubt as to the interaction of the terms of ‘orders’ and ‘directions’ in s 79 ART Act, paragraphs [559]-[564] of the Explanatory Memorandum assists.
The objects of the Tribunal in s 9(b) ART Act reinforce the Tribunal’s commitment to quick and inexpensive resolution of matters, undertaken with fairness and justice appropriate to the circumstances of the case. It is worth noting in that context that taxation proceedings where both parties are legally represented (often by experienced counsel), necessarily operate in a more formal setting than some other matters heard by the Tribunal. Commensurate with that is a reasonable expectation by the Tribunal of compliance with and respect for its directions and case management practices, regardless of the dispute. Section 56 ART Act obliges the parties to assist the Tribunal in its endeavours to effectively and efficiently case manage proceedings to hearing.
The Tribunal’s Practice Directions[30] provide further guidance for parties participating in hearings before the Tribunal. Those Practice Directions put parties on notice of the potential consequences should they fail to comply with the Tribunal’s directions.[31] These consequences are also spelled out in the notes which attach to each set of directions issued by the Tribunal to parties.
[30] Administrative Review Tribunal (Common Procedures) Practice Direction.pdf
[31] See in particular [1.8], [4.29], [4.30], [4.33].
Section 14ZZK Taxation Administration Act 1953 (Cth) (TAA) is relevant to these reasons given the review proceedings. In bringing his application for review, KBHN will ultimately bear the onus in the review proceedings of demonstrating both that the Commissioner’s assessments are excessive and what his true income is.[32] That is a substantial burden and is relevant to my evaluation of the Commissioner’s submissions about the prospects for the review proceedings (see below). It is also relevant to note that the Tribunal is tasked in the review proceedings with review of the Commissioner’s objection decision but cannot otherwise look behind the tax assessments or entertain any question of whether they were validly issued.[33]

Reinstatement where dismissal occurred in ‘error’ (s 102(5))

[32] Gashi v Federal Commissioner of Taxation [2013] FCAFC 30; (2013) 209 FCR 301; Commissioner of Taxation and Dalco (1990) 168 CLR 614.

[33] Federal Commissioner for Taxation v Futuris Corporation Limited [2008] HCA 32; (2008) 237 CLR 146.

The Tribunal has a discretion to reinstate an application under s 102(6) ART Act following an application which meets the requirements of s 102(5) ART Act. The crucial requirement is that the applicant can demonstrate the operative error leading to the dismissal.
In Goldie v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 367, the Full Court of the Federal Court considered the available scope of the error in former s 42A(10) AAT Act. The majority (Wilcox and Downes JJ) relevantly observed:[34]
The only limitations that we can see in s 42A(10) are:
(i) that the tribunal has dismissed the application; and
(ii) that the act of dismissal was attended with error.
We do not think it is necessary, in order to enliven the tribunal’s power under s 42A(10), that the tribunal, or a member or employee of the tribunal, should have been at fault in relation to the dismissal. The fault may have lain elsewhere, provided it induced the error. For example, because of a mistake as to his or her instructions, a solicitor or other representative of a party might have wrongly consented to a dismissal order or filed a notice of discontinuance. No fault would attach to the tribunal; but, if the solicitor’s mistake induced the dismissal of the action, it could properly be said the application had been “dismissed in error”.
[emphasis added]
[34] [29].
In Gregory v Comcare (Compensation) [2023] AATA 4880, the Tribunal further examined the causal relationship between the alleged ‘error’ and the ‘dismissal’ in former s 42A(10) AAT Act and noted:
It can readily be understood, therefore, the Tribunal’s discretion under s 42A(10) is essentially preconditioned by any error which induced or attended dismissal of the application. For the discretion to be enlivened, a causal relationship between the error and dismissal of the application must be established. So much has been accepted in successive decisions of the Tribunal. In other words, the error must be a material factor in the dismissal. Clearly enough, the question of the materiality of the error must be viewed through the lens of the dismissal. An error which is of peripheral or contextual significance may not be sufficient unless the Tribunal is satisfied the error induced the dismissal.
[emphasis added]
In JTBJ, the President of the Tribunal recently considered but rejected the contention that an operative error, for the purposes of s 102(5) could include an error of law such as a failure to afford procedural fairness to a party.[35]
[35] [46].
In considering an application for reinstatement under s 102(5), the Tribunal can consider new information which was not available or known when the application was dismissed to determine whether there was attending error.[36]
[36] Re Bates and Comcare [2015] AATA 199, [26], [40].
In De Simone and DFYN, the Tribunal also considered the operation of the former s 42A(10) AAT Act in circumstances where an application stood dismissed by operation of self-executing orders. In both cases the direction that enlivened the dismissal was self-executing. As the Tribunal observed in De Simone at [14]:
The self-executing direction was not complied with. Partial compliance with such a direction, as has occurred in the present circumstances, is not full compliance and full compliance is required to avoid the dismissal effect of the direction. Missing the stipulated time by one minute is sufficient to attract the s 42A(5) effect of the direction. Whether there was a reason for missing the stipulated time is not to the point: to avoid the effect of the direction the Applicant needed to obtain an extension, just as he had done in relation to the 6 July 2016 direction.
The Tribunal relevantly identified in DFYN the strictness of the operation of a direction which is self-executing and the limitations attending the test in what is now s 102(5):
The power in s 42A(9) is necessary to avoid unfairness. But that power is not available where the dismissal occurs pursuant to s 42A(5) because the applicant has already been accorded procedural fairness. The rules are strict because it is inefficient for the bureaucracy to be tied up in prolonged and meandering review processes. The power to reinstate where the dismissal is attended by error in s 42A(10) provides an exception that is, once again, intended to avoid unfairness. But the language can only stretch so far. In this case, the proceedings were dismissed because the taxpayer did not comply with the directions or make a timely request for an extension in light of her circumstances. It was unfortunate and even understandable that she did not do so, but it is not an error in the relevant sense.

Reinstatement at the Tribunal’s discretion s 102(9)

Section 102(9) ART Act independently permits the Tribunal of its own discretion to decide to reinstate the application, where appropriate.[37] This avenue for reinstatement requires an applicant to have first made application under s 102(7) ART Act.
[37] Djuric and Commissioner of Taxation [2025] ARTA 469. (Djuric), where the Tribunal distilled these factors with reference to Assaf and Tax Practitioners Board [2024] ARTA 47; Buchanan v Administrative Appeals Tribunal and Commissioner of Taxation [2013] FCA 1099; Cremona the Administrative Appeals Tribunal [2015] FCA 288; Clinnick and Australian Securities and Investments Commission [2021] AATA7; Somba and Minister of Home Affairs [2020] AAT 825; Serpinli and the Secretary Department of Social Services [2019] FCA 2029.
In Djuric v Commissioner of Taxation [2025] ARTA 469, the Tribunal recently reviewed previous authorities and identified four key factors relevant to the exercise of the Tribunal’s discretion under s 102(9), which I will adopt as relevant to the present case, with one addition, namely:
a.whether there was a reasonable explanation for the issue/s that resulted in the dismissal;
b.the merits of the substantive case;
c.any prejudice to the parties; and
d.any relevant public interest considerations.
The addition is to (c) because I consider potential for prejudice to other litigants is also a relevant consideration. This much was observed by the High Court in Aon Risk Services Australia Ltd v Australian National University[38] (Aon).

CONSIDERATION OF THE APPLICATIONS

[38] (2009) 239 CLR 175, [24].

Application made under s 102(5)

There was some confusion around Mr Henry’s written outline of submissions on the reinstatement applications. First, and despite Ms H’s application referring to ‘s 102’, it appeared that KBHN only sought reinstatement under s 102(5) ART Act. When prompted, Mr Henry clarified orally that the application was made under both ss 102(5) and 102(7) ART Act.
Second, Mr Henry was asked to identify what the ‘error’ was that was the subject of the application under s 102(5) ART Act. Quite wisely, for reasons to which I will explain later, Mr Henry did not submit at the interlocutory hearing that there had been any ‘error’ by the accountant.
Instead, Mr Henry primarily contended that the relevant ‘error’ was that the Tribunal had acted ultra-vires in making the direction because it had no power to do so under the ART Act. He had also alluded to procedural fairness in his written submissions but largely did not address this in oral submissions. In the interests of fairness, I have considered, addressed, and rejected both, below.
As a secondary argument, Mr Henry contended the relevant conduct constituted ‘minor non-compliance’ such that the pre-conditions for any self-executing direction did not arise. I have also considered, addressed, and rejected this argument, below.

I pause to note that Mr Henry’s written outline of submissions made several allegations about the unjustness of the charges raised against KBHN and the Commissioner’s alleged motives for raising the assessments. These were scandalous, and irrelevant to either the reinstatement application or the review proceedings. I do not agree with Mr Henry’s submission that they add colour and context to the reinstatement application. I have not had regard to them in determining this application.

The ultra-vires argument

As I apprehend Mr Henry’s oral and written submissions, KBHN contends that the Tribunal has acted ultra-vires because it does not have the power to make a self-executing direction and was not a superior court.[39] The basis for this says Mr Henry is there is no specific power in the ART Act which permits it. The proper course, he contended was for the Tribunal to await an application by the Commissioner for a dismissal under s 100 ART Act.
[39] Re QANTAS Airways Ltd v Deputy Commissioner of Taxation (1979) 2 ALD 291. The Applicant also referred to rule 5.21 of the Federal Court Rules (2011) (Cth) as evidence that the Tribunal would need similar rules to permit it to dismiss a proceeding within a certain time.

I note the Commissioner’s responsive submission and agree that it was not entirely clear from Mr Henry’s oral and original written submissions whether KBHN was alleging here jurisdictional error or some other form of error of law. However, it seems clear from his supplementary submissions that he is alleging jurisdictional error.
As I have noted above, it has long been accepted that Tribunal has broad discretion to make self-executing directions in appropriate circumstances.[40] I do not read those authorities as being ‘circumspect’. Nor do I agree that the ART Act should be read more narrowly than the equivalent provisions in the former AAT Act which operated when the De Simone and DFYN decisions were made.[41]
[40] De Simone and DFYN.
[41] Explanatory Memorandum [425]-[427]; [555]-[564]; [635]-[637]. The discretion the Tribunal’s discretion to make directions is broader under s 79 than it was under s 33(2A) AAT Act.
Even if I am incorrect, KBHN’s ultra-vires argument attempts to seek de-facto judicial review of the Tribunal’s conduct by the Tribunal. That is a matter (absent the application of the Bhardwaj principle[42] which I consider briefly below) which should properly have been the subject of an application to the Federal Court and cannot be made on a s 102(5) application.
[42] Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 (Bhardwaj)
During the hearing, the parties’ attention was drawn to JTJB. Mr Brennan has submitted, and I accept that the President of the Tribunal considered in JTJB (with reference to Goldie) whether an error for the purposes of s 102(5) ART Act could include an error of law and by exclusion of that category of error from those categories he concluded fell within the permitted scope of s 102(5), he concluded it did not.[43]
[43] Goldie [43]-[44].

The Bhardwaj principle

Mr Henry submitted, that because the alleged error rendered the dismissal a nullity, the Tribunal had an obligation to proceed to list the proceeding for a compliance and/or dismissal hearing. Here, Mr Henry suggested that the Tribunal can and should now proceed as decided by the majority of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (14 March 2002); (2002) 187 ALR 117 (Bhardwaj).
Even if I accepted that the Tribunal had acted ultra-vires, which I do not, I cannot agree that such an approach is either appropriate in this case. JTBJ demonstrates that care and caution are required before that approach is taken by the Tribunal.
In Bhardwaj, the High Court was presented with a particular and unique set of facts which do not exist in the present case. The most significant of these was a firm view judicial review would inevitably find that the AAT had erred. In Bhardwaj, the Tribunal dismissed the proceeding for non-attendance because it failed to see and consider correspondence from Mr Bhardwaj received the day before the hearing which notified that illness would prevent his attendance the following day.[44]
[44] In JTJB, the President applied the Bhardwaj principle in circumstances where among other matters, both parties agreed that the ’dismissal decision’ which was the subject of the reinstatement application was wrong in law and that the respondent did not contend that it was not open to the Tribunal to treat that decision has have no legal effect. [79].
In the circumstances of this case, the alleged ‘error’ in law is highly contestable. There is no agreement between the parties that jurisdictional error has arisen. The Tribunal does not take the view that it has erred. In the circumstances, absent another basis for reinstatement, a challenge to the direction would need to be made to the Federal Court.

The procedural fairness argument

If it is pressed, I acknowledge that Mr Henry referred the Tribunal in his written outline of submissions, to various authorities which he suggests point to further or in the alternative, to the Tribunal’s requirement to afford procedural fairness in this case.[45]
[45] R v War Pensions Entitlement Appeal Tribunal ex parte Bott (1933) 50 CLR 228, Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482. Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275, [69] per Refshauge ACJ; Pires v Dibbs Barker Canberra Pty Limited [2014] ACTSC 283, [5]-[7]
I apprehend Mr Henry to be arguing here that the Tribunal did not afford KBHN procedural fairness before making the order. I accept the Tribunal is obliged to afford procedural fairness to KBHN but do not accept that it was not done.
As to what was required for procedural fairness, in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]) Gleeson CJ observed:
Procedural fairness requires the avoidance of “practical injustice”. It requires, at the very least, the adoption of procedures that ensure to a person whose right or legally protected interest may finally be altered or determined by a court order a fair
opportunity to respond to evidence on which that order might be based.
As the Commissioner has observed, KBHN is currently represented in these proceedings by experienced counsel and was previously represented byanother law firm. Any consideration of the opportunity/ies which should have been afforded to him to be heard, must be viewed in that light.
KBHN’s advisors were already on notice before the 8 April 2025 directions hearing that all was not well. The accountant had been directed to file an affidavit and the notes to the directions and the Tribunal’s Practice Directions also would have informed their view.
Based on detailed review of the transcript of the 8 April 2025 directions hearing, I am satisfied of the following in terms of procedural fairness:
a.the Tribunal took Mr Henry to each of the prior instances of non-compliance in turn and afforded him an opportunity to explain why given that non-compliance, the applications should not be dismissed for non-compliance with the directions;
b.Having heard from both parties the Tribunal then explained that it was proposing to make the direction but offered Mr Henry a further opportunity to be heard before it did so, including as to the proposed timeframe for the operation of the self-executing direction;
c.In making the direction, the Tribunal was clear that it was guided by the accountant’ evidence and Mr Henry’s confirmation that a two-week extension would be sufficient; and
d.Prior to making the direction, the Tribunal took care to ensure that the direction was fully explained to the parties, along with the reasons why the Tribunal thought it was required; and further
e.The Tribunal sought an assurance from Mr Henry and the accountant that they would take the time to explain the direction to KBHN.
In such circumstances, I am satisfied that KBHN’s advisors understood the issues which led to the making of the direction, were afforded an opportunity to respond to the material allegations and the proposed direction and were on notice of its effect and the reasons why the Tribunal thought it necessary to issue the direction.
It is significant that the accountant has not told the Tribunal whether and when KBHN was informed about the self-executing direction or its effects. I infer from his evidence, that he neglected to do so. That is a matter for KBHN’s advisors.
In any event, I am satisfied that KBHN’s counsel was afforded ample opportunity to address the matter before the direction was made on 8 April 2025 and further was on notice about the order, its precise terms and the reasons why it was being made, before the direction issued to the parties. On the accountant’ evidence, it was clear that Mr Henry understood the nature of the direction and by 21 April 2025, the accountant not only understood as well but apprehended he may not meet the deadline.
In such circumstances, I cannot agree that KBHN has been denied procedural fairness.

The absence of ‘non-compliance’ argument/minor-non-compliance argument

Mr Henry further and alternately submitted that there was an absence of what he referred to as ‘provable non-compliance’ to support the issue of the direction on 8 April 2025 given KBHN’s history in the proceedings. He submitted the following arose in this case which was of a minor nature:
a.non-compliance with directions in November 2024; and
b.non-compliance with directions in December 2024. He also pointed to the fact that the accountant explained in his statutory declaration that this led to a situation arising where a letter was contemplated, but which wasn’t sent, to notify the Commissioner, that the direction wasn’t likely to be met.
By this, I understand Mr Henry to be alleging the operative ‘error’ was the Tribunal’s miscalculation that the prior conduct was ‘sufficient’ non-compliance to warrant the direction it made on 8 April 2025.
I question at the outset, whether this argument is effectively a different species of error of law argument, which should also properly be the subject of an application for judicial review.
In support of this argument, Mr Henry referred to Birkett v James as cited in Lenijamar Pty Ltd v A.G.C (Advances) Ltd [1990] FCA 271 as suggesting a higher standard to be met before a case was dismissed for want of prosecution including serious prejudice to the other party. I am not convinced that authority provides support for KBHN in the circumstances. I note that in Lenijamar Pty Ltd v A.G.C (Advances) Ltd [1990] 22 FCR 364; 96 ALR 197 (Lenijamar), a case which was subject to case management on the version of the Federal Court Rules which predated the current version, Spender J expressed similar frustration to that which the Tribunal has expressed in this case in respect of the plaintiff’s failure to prosecute their case. In Lenijamar, Spender J granted the application for dismissal with costs under the former Federal Court Rules, for the plaintiff’s repeated failure to progress their claim.
In any event, each case must be considered on its own facts, and I cannot agree with Mr Henry’s description of the history of non-compliance in these proceedings as ‘minor’. His characterisation ignores one set of directions made in November 2024, and ignores the timeframes involved at each stage directions were made and the effort taken by the Tribunal to engage with the parties to bring the matter to a state of readiness for hearing. Significantly, it also overlooks the way KBHN’s advisors have engaged, or rather failed to engage with the directions the Tribunal has issued and the lack of communication with the Tribunal and the Commissioner when directions are not complied with. It is this last aspect of the conduct which has particularly contributed to the Tribunal’s concerns about compliance in these proceedings. My strong impression is that the Tribunal’s directions have previously been treated by KBHN and his advisors as some sort of aspirational goal and nothing more. Certainly, there was an assumption of no consequences prior to the dismissal on 22 April 2025.
Mr Henry’s submissions also ignore the age of the review proceedings. Without attributing blame to KBHN, it is an objective fact that the applications are aged (filed in 2017), and it is logical for the parties to assume the Tribunal would want the parties to assist it to progress them to hearing as quickly as possible.
The ‘minor non-compliance argument’ is a matter that KBHN could have addressed in detail on 8 April 2025 before the direction was made. Instead, the Tribunal was told the timeframe being applied was adequate and there was no objection to the direction being made. I do not agree with Mr Henry’s submission that his acquiescence to the direction was in the circumstances, irrelevant.
In any event and viewed in closer detail, the accusation that the Tribunal mischaracterised the compliance, even if true (which I don’t accept) appears to lack the necessary temporal connection between the ‘error’ for s 102(5) purposes and the dismissal. That requirement as was noted in Gregory is strictly observed. What KBHN is describing is a view by the Tribunal which led to the making of the direction on 8 April 2025 but did not directly cause the dismissal of the applications.
The direction made on 8 April 2025 was inflexible in its operation but could have been avoided had the accountant sought and obtained an extension of time prior to 4pm on 22 April 2025. Absent compliance or ameliorating steps, it took effect from 4pm on 22 April when the material was not filed. It could not be bargained down on the basis that the non-compliance was minor in this case. That was why the time was taken on 8 April 2025 to make sure KBHN and his advisors understood how it would operate.
To reinstate the application under s 102(6) ART Act, the Tribunal needs to be able to identify an error under s 105(2) which directly caused the dismissal. I am not satisfied that KBHN has revealed any operative error on the Tribunal’s part.
In all the circumstances, I am not satisfied there is a proper basis for the Tribunal to exercise discretion to reinstate the applications under s 102(6) ART Act.

Was the accountant’ misunderstanding of the direction an ‘error?

The written outline of submissions alluded to this factor as an operative error but having the benefit of the Commissioner’s outline of submissions, Mr Henry abandoned it at the hearing on 18 June 2025. Should I be wrong in this understanding, I was not persuaded that the evidence reveals an operative error by the accountant which caused the dismissal. The reason for this is apparent from close reading of the second affidavit, the statutory declaration and the transcript of the 8 April 2025 directions hearing.
That evidence collectively discloses that if not from 17 April 2025, then certainly by 21 April 2025, the accountant was fully informed of the effect of the direction. However, by his own evidence, he then made a calculated decision on 21/22 April 2025 to proceed, despite warnings from Mr Henry because he thought he could file after the deadline without consequences. I infer from his evidence that by this, he means he assumed, the Tribunal would overlook the non-compliance. This ‘all care and no responsibility’ approach is consistent with the previous conduct of KBHN and his advisors to the Tribunal’s directions, so it rings true.
It means that am satisfied on this evidence that there was no error on the accountant’s part. On his own evidence, he took a chance, aware of the consequences and did not seek any extension. He filed late. His decision backfired.

Application made under s 102(7)

I have set out below my evaluation of the relevant factors in respect of this application which is also discretionary. The crucial element in this test is whether in all the circumstances, reinstatement is appropriate.

Was there a reasonable explanation for the issue/s that resulted in the dismissal?

I refer to and rely upon the facts I have recited in these reasons and note the evidence given by the accountant in his statutory declaration which I accept as truthful.
My assessment of this factor takes into consideration that the material was ultimate filed on the day it was due and only 2 hours late. Had nothing been filed, my consideration of the reasonableness of the accountant’s explanation would necessarily have been viewed in a different light.
The Commissioner contended there was no reasonable explanation for KBHN’s failure to comply. He pointed with concern to the inconsistencies between the second affidavit and the Statutory declaration. In particular, he called out that on 8 April 2025, the accountant told the Tribunal the evidence was nearly done, while later, he contended in his statutory declaration that it was effectively prepared over a few days, just prior to 22 April 2025
I accept the concerns the Commissioner has raised in his outline of submissions. They are not petty or small. I also accept the evidence discloses, at best, poor time management on the part of KBHN and his advisors, including delay by KBHN personally in providing records to the accountant only days before his evidence was due to be filed.
However, I also note and accept that the accountant has made some very frank admissions about his conduct in his statutory declaration. In doing so, he has not spared his own reputation.
The accountant acknowledged that he took on this case without proper training or resources. His description of his attempts to wrangle the material to filing without proper experience and technical supports is compelling reading and stands as a warning for anyone contemplating running their own litigation. the accountant it seems, significantly miscalculated about every step in the process, including his final incorrect calculation that he could just file late, without consequences.
I accept that the accountant is not a legal practitioner and is not experienced in these matters and I also accept he appears to have been unsupported in his endeavours. I accept that he did make considerable effort over the period allotted, and he was focussed in the 2-week period on achieving the deadline imposed by the direction. To put it another way, my sense is that for better or for worse, the accountant always did intend to file on time but without realising, set himself up to fail. He was ultimately non-complaint by only 2 hours and 3 minutes. More importantly and thanks to his efforts, the Tribunal now has achieved the ‘unicorn’ of the filing of KBHN’s material.
Mr Henry correctly conceded that the accountant should have sought a further short extension of time to file the material. One wonders whether Mr Henry should have suggested as much to the accountant given, he knew he is not a legal practitioner. While that application would have been challenging given the prior non-compliance, it could have avoided dismissal of the proceedings and the cost and trouble which has followed.
I do agree with the Commissioner’s submission that the evidence now suggests that as of 8 April 2025, the Tribunal was misinformed that KBHN’s material was not ‘well progressed’. Instead, it was effectively prepared between 17 and 22 April 2025. The Tribunal relied on the second affidavit when proposing the timeframe for the direction made on 8 April 2025. Mr Henry was also afforded an opportunity to suggest a different timeframe but did not do so. He also relied upon the second affidavit to say it would be ‘adequate’. This is concerning and regrettable. This is not a matter where the Tribunal is relying on an unrepresented taxpayer. KBHN is represented by experienced counsel.
That said and in fairness to the accountant, the second affidavit did foreshadow ‘more documents being anticipated’.[46] That did have a ring of truth to it, and suggested he knew as of 7 April 2025 that the evidence was not finalised and was not trying to hide it.
[46] [12].
I have no doubt that an experienced legal practitioner would have instructed their counsel to ask for a longer estimate of time for the material to be finalised or, if faced with two weeks, would have better managed their client given the timeframe. The accountant was not so qualified or experienced.
In all the circumstances, I consider the statutory declaration, while disclosing a sorry tale, and doing nothing to bolster the Tribunal’s confidence in the submissions made by KBHN’s advisors, does provide an honest and self-critical explanation for the delay of just under 2 hours in filing the material. I am persuaded it marginally favours reinstatement given the material was filed on the day it was due and was only two hours late.
Had the material not been filed at all, I may have made a different assessment.

What are the merits of the substantive case?

The Commissioner has, in his submissions, analysed KBHN’s material in detail and submits it is wanting. He contends that there are flaws and omissions in both the SFIC and the evidence which will makes KBHN’s prospects of success at hearing poor. He addresses both in detail in his submissions to the Tribunal but specifically:
a.there is evidence addressing matters which are not in contention;
b.there are no corroborative records supporting many transactions which are in contention;
c.the SFIC is drawn in terms which don’t assist to distil the issues; and
d.there are irrelevant contentions in the SFIC.

I accept that in the review proceedings, KBHN must discharge a significant statutory burden imposed by s 14ZZK. It is not lost upon the Tribunal that in this case, the findings may turn upon whether the Tribunal is satisfied that there is evidence of reimbursements that KBHN alleges occurred.
I acknowledge the Commissioner’s contention that the evidence lacks corroborative records, and that KBHN may be unable to produce any more given the effluxion of time. Without them, KBHN is left to give evidence and be cross-examined. I acknowledge that is difficult to substantiate transactions on evidence alone, without corroborative records, but it is not always impossible.
Whether KBHN ultimately fails to convince the Tribunal sufficiently to discharge his onus will be a matter to be determined by the Tribunal once he has given his evidence. Beyond that, I cannot presently be satisfied that KBHN’s case is entirely hopeless.
To the extent both KBHN’s SFIC and evidence address irrelevant matters, the Tribunal can and will manage the problem by hearing from the parties and if necessary and appropriate ruling to exclude material which is not probative or alternatively, apply less or no weight to it.
To the extent the SFIC does not engage strategically with the issues, the Tribunal will be assisted by KBHN’s grounds of objection and the Commissioner’s SFIC. While it would be ideal to have targeted SFICs from both parties which narrow the issues in dispute, I am not convinced the alternative would mean the hearing cannot proceed.
To summarise, while I accept the Commissioner has identified flaws and irrelevancies in KBHN’s case, I am not presently persuaded the review proceedings are without any prospects.
In such circumstances, I am not persuaded there is such deficiency as to deny reinstatement.

What is the prejudice to the Respondent, the Tribunal, and other litigants if the applications are reinstated?

The Commissioner submits he would be prejudiced if the Tribunal elects under s 102(9) to reinstate. At the centre of this submission is his concern, shared by the Tribunal, that KBHN has threatened to reset his entire case, effectively putting the parties back in the position they were in, in July 2024.
I discussed this matter with Mr Henry at the hearing on 18 June 2025 and extracted some undertakings from him. I believe the Tribunal can address this concern by managing the proceeding on three fronts.
First, the Tribunal sought and received on 18 June 2025, an acknowledgement from Mr Henry that the applications are ready to proceed to hearing starting 25 August 2025. Accordingly, I intend to list the hearing to commence on that date.
Second, I asked Mr Henry what further material he was contemplating. It appears it is limited to summons for documents (which KBHN has already had an opportunity to seek).
My strong view is that KBHN has had many opportunities to file his material and to lodge requests for summons. His filings have now closed and the Tribunal can make orders to ensure he does not derail the process to hearing by lodging further affidavits or amendments to his SFIC or by lodging any late requests for summons for documents without notice to the Commissioner and approval of the Tribunal.
Third, on my brief assessment of the evidence filed, this application will not take 5 days to be heard, resulting what I hope will be a potential cost saving for the parties.
These observations, I believe, address the first three of the Commissioner’s contentions about the current state of the proceedings, further delay in bringing it to hearing and the adverse effects arising from further amendments to the Applicant’s SFIC and evidence.
Next, I acknowledge the Commissioner’s observations about resourcing and costs which have attended the case management of these review proceedings to date. I suspect there has been additional cost for both parties flowing from KBHN’s non-compliance, which is regrettable.
The Commissioner is a large and sophisticated litigator, and he was always working towards a hearing starting on 25 August 2025. He has not yet had to lodge his SFIC but can now do so and the Tribunal will manage the matter to hearing. The planned hearing date will be preserved. The anticipated and feared reset will not be permitted and now that KBHN’s material has been filed, the Commissioner can also prepare for a hearing which is hopefully on a much smaller scale than anticipated.
These steps, will not fully compensate for the costs the Commissioner has incurred, but it will contain them.
There has also been prejudice to the Tribunal which has expended resources case managing this matter. The Tribunal was also working toward a hearing commencing on 25 August 2025, and it can now depend upon that and can hopefully reallocate resources if the hearing is shorter than originally anticipated.
What this does mean is that any further delays or attempts to ‘reset the review proceedings’ will not be tolerated other than in the most necessary of circumstances.
That is underscored by the fact that any delay of the hearing in this proceeding will have a potential adverse impact on other litigants who are awaiting listing of their hearings. It means any further changes to the hearing dates are unlikely to be accommodated without special reason.
In that regard, the Tribunal notes that Mr Henry confirmed on 18 June 2025 that the matter can proceed to hearing on 25 August and that he can appear. If for any reason that is no longer the case, the Tribunal will expect alternate counsel to be briefed well in advance of the hearing dates.
In summary, I accept any potential prejudice arising from reinstatement can be managed so long as the current hearing dates are maintained.

Public interest considerations

The Tribunal exists to provide applicants such as KBHN an opportunity to seek independent review of government decisions. Within reason, an applicant should be afforded the opportunity to have their matter heard and determined.
The effective case management of parties is of central importance to the Tribunal which is required to operate effectively and efficiently and to promote public confidence in its decision making. Parties have a statutory obligation under s 56 to assist the Tribunal in its management of their cases. In this case, my frank observation is that KBHN’s advisors could do better in this regard.
There is a public interest in the Tribunal being seen to operate flexibly but efficiently. KBHN is using an accountant to assist him and is direct briefing counsel, presumably because it is cheaper to do so. Within reason the Tribunal should support this choice and adopt a flexible approach, but not to the extent that it prejudices the other party or other litigants. Any further failure to comply with directions by KBHN or his advisors will not be tolerated.
There are currently more than 107,000 applications before the Tribunal. KBHN has been allowed 12 months to file his material and case managing this proceeding has taken up valuable Tribunal time which distracts from its ability to manage other applications. That is regrettable and the recent trajectory of the proceeding is not consistent with the Tribunal’s objectives in s 9 of the ART Act.
Moving forward, the Tribunal will take necessary steps to ensure KBHN complies with the Tribunal’s directions. If he and his advisors do not comply, the Tribunal will take further action and has the power to dismiss the proceedings, if appropriate.
Given all these considerations and the steps the Tribunal can and will take to manage them, I am satisfied there are no public interest considerations which would preclude or outweigh (either individually or collectively) the exercise of my discretion to reinstate or which outweigh the interest in allowing KBHN to have his opportunity to be heard on 25 August 2025.

Conclusion on the reinstatement application

Based on these reasons, I am persuaded it is appropriate to reinstate the applications contingent upon the orders I have made below.

Costs

KBHN claims to have reserved his position on costs. As I have noted, the Tribunal does not have the power to award costs. KBHN is represented by experienced counsel and should also be aware of this fact.

Confidentiality orders

KBHN has sought orders under ss 69 and 70 ART Act for fear of his safety and that the Commissioner will use his evidence for other purposes. On the material currently presented:
a.the proceedings will be heard in private pursuant to s 14ZZE TAA;
b.any decision and reasons will be published subject to the restrictions in s 14ZZJ TAA;
c.the parties are bound by the Harman Obligations[47] and the Practice Directions[48] in terms of any collateral use of the material.
[47] Also referred to as the parties’ obligations pursuant to Hearn v Street (2008) 235 CLR 125.
[48] Administrative Review Tribunal (Common Procedures) Practice Direction.pdf. [5.5]-[5.7].
I am therefore unpersuaded there is presently any compelling reason to make the confidentiality orders requested, given the protections afforded by s 14ZZE TAA.
I would observe it was Tribunal which took the initiative to recommend the s 14ZZE protection to KBHN, more than 8 years after his application was lodged (without any restriction operating over publication of listings and access to material filed). To the extent members of the public may be able to discern his identity, which delay in electing to have a hearing in private may have contributed to his present circumstances.
I also acknowledge that the Commissioner cannot be constrained in respect of his obligations under the Taxation Laws even if I were persuaded the orders should be made.[49]
[49] La Mancha Africa S.A.R.L v Federal Commissioner of Taxation [2021] FCA 1564; Income Tax Assessment Act 1936 (Cth), ss 8 and 166.
Even though the Tribunal will not presently make any order, I will allow KBHN a further opportunity to persuade me about his application at the final hearing and before any reasons are published. At that point it will be for KBHN to convince the Tribunal that ss 14ZZE and 14ZZJ TAA together with the Harman obligation will not adequately protect his interests such that an order is required to be made. That process will in any event, provide a useful guide to the Tribunal as to what information should be masked in its reasons for decision.

Communications with the Tribunal

Since November 2024, KBHN has largely communicated with the Tribunal via emails received from either or both of the accountant and Mr Henry. The effect has been unhelpful and confusing at times, with conflicting emails being received by the Tribunal from each of the accountant and Mr Henry.
There are difficulties which arise when counsel engage directly with the Tribunal. While the accountant is not a qualified lawyer, the Tribunal would prefer that he act as the sole contact for KBHN with the Tribunal, moving forward. An order to that effect is below.

Dispositive orders

Accordingly, the Tribunal ORDERS as follows:

Pursuant to s 102(9) ART Act, the Tribunal exercises its discretion to reinstate the applications.
The Applicant’s application pursuant to ss 69 and 70 ART Act is refused.
The applications are listed for hearing commencing 25 August 2025. That hearing will be in person in Brisbane to commence at 10am each day until completed. KBHN is required to be available from 25 August 2025 to give evidence in person and be cross examined.
On or before 29 July 2025, the Respondent is to file and serve on the Applicant his Statements of Facts, Issues and Contentions (SFIC) and any evidence upon which he intends to rely.
The Applicant requires leave of the Tribunal to lodge any amendment to his SFIC or any further evidence in the proceeding.
The Applicant requires leave of the Tribunal to lodge any request for summons to be issued to third parties to attend and give evidence in these applications.
Any application for leave to request summons to a third party to produce documents should be filed by the Applicant with the Tribunal as a draft summons together with written submissions and served upon the Respondent by no later than 1 July 2025. Such application will be heard on 10am in person by the Tribunal on 4 July 2025. Thereafter, the Applicant will require leave of the Tribunal to request any further summons.
The parties are to confer for the purpose of agreeing the index for a hearing book and on or before 31 July 2025, the Respondent is to lodge with the Tribunal the agreed hearing book in the following form:
a.in text-searchable PDF format;
b.without duplicate documents where not required for context;
c.paginated and bookmarked; and
d.with an index which is numbered to not impact PDF references to the documents.

Copies of witness affidavits are to be included in the hearing book and exhibits to those affidavits are to be bookmarked.

Copies of the parties’ SFICs are also to be included in the hearing book.
The parties are to discuss and agree and the Respondent is to engage with the Tribunal to discuss arrangements for the electronic display of evidence at the hearing.
The Respondent should discuss with the Applicant and if necessary, apply to the Tribunal to be heard on the question of any objections to the Affidavit’s SFIC or evidence.
On or before 11 August 2025, the Applicant is to file any opening submissions.
On or before 18 August 2025, the Respondent is to file any opening submissions.
All further correspondence with the Tribunal in the conduct of these applications is to be made by either the accountant for the Applicant or Minter Ellison for the Respondent. Applicant’s counsel is not to directly correspond with Tribunal staff on behalf of the Applicant and will not be copied to correspondence issued by the Tribunal in these applications.

Date(s) of hearing:	18 June 2025
Date final submissions received:	20 June 2025
Solicitors for the Applicant:	Nil
Solicitors for the Respondent:	Minter Ellison