Mensforth and Commissioner of Taxation
[2007] AATA 1554
•17 July 2007
Administrative Appeals Tribunal
DIRECTION AND REASONS FOR DECISION [2007] AATA 1554
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: QT200600457
Taxation Appeals Division )
Re: Peter Mensforth
Applicant
And: Commissioner of Taxation
Respondent
DIRECTION
TRIBUNAL: Deputy President P E Hack SC
DATE: 17 July 2007
PLACE: Brisbane
The Tribunal DIRECTS:
- That these proceedings stand dismissed unless, on or before 4.00pm on 3 August 2007, or such further time as the Tribunal may, before that time, allow, the applicant gives to the Tribunal and to the respondent his witness statement and all other witness statements on which he intends to rely on at the hearing.
- That a copy of the reasons for the decision and the direction be forwarded to the applicant as well as to the solicitor for the applicant.
DEPUTY PRESIDENT
REASONS FOR DECISION
| 17 July 2007 | Deputy President P E Hack SC |
I am presently concerned with a directions hearing in the matter where the applicant, Mr Peter Mensforth, seeks a review of a decision of the respondent, the Commissioner of Taxation. It is unnecessary for present purposes to look at the history of this matter which was commenced as long ago as December of last year. The progress to this point has been slow but it is unnecessary to go into the history of it. A sufficient history will be demonstrated if I commence by noticing that on 15 June 2007 at a telephone directions hearing conducted by Senior Member McCabe and attended by Mr Clifford Hughes, the solicitor for the applicant, the Senior Member on that occasion made a direction that: “On or before 9 July 2007 the applicant give to the Tribunal and the respondent a witness statement from the applicant. On or before 9 July 2007 the applicant give to the Tribunal and the respondent all witness statements he intends to rely on at the hearing.”
I interpolate to say that a direction in similar terms had been given on 20 March 2007 by Conference Registrar Rogers directing the lodging of that material by 10 April 2007 but that direction had not been complied with in circumstances where there is some doubt as to whether the direction was sent to the correct address.
Nonetheless, it is plain from the Tribunal’s notes of the telephone directions hearing that Mr Hughes was present, indeed the Associate’s notes record that Mr Hughes was asked how soon could the direction be complied with and he responded that he would need at least 14 days. In the result, the Senior Member provided 21 days to provide the witness statements. In accordance with the practice of the Tribunal, a copy of that direction was sent to Mr Hughes on 19 June 2007. That direction contains the usual notes as to the possible consequences of failure to comply with the direction. The date for compliance with the direction came and went without it having been complied with. In consequence, on 12 July 2007 the matter was listed for a directions hearing before me at 9.00am today.
That listing notice was sent by facsimile to Mr Hughes’ facsimile number at a little after 1.00pm on 12 July 2007. In addition, a member of the Tribunal’s staff left a voice message with Mr Hughes to call at 2.15pm on the same day, and, at 3.35pm on the same day a detailed message was left on Mr Hughes’ mobile phone asking him to call the staff member and advising that the matter had been listed for a non-compliance directions hearing that he was required to attend in this hearing room today.
Yesterday afternoon Mr Hughes contacted my personal assistant and advised that he had a prior commitment today. This morning a letter has been received from Mr Hughes confirming that he has a prior presentation commitment from 8.30am until 1.00pm today that had been arranged many weeks ago. The letter continues, “My understanding of the last teleconference in this matter was that my client’s affidavit material is to be supplied by 21 July 2007 and that I specifically raised during the teleconference the fact that my client was traveling [sic] overseas. My client returned from the United States at the beginning of last week. Whilst he was away there was no ability to contact him or to establish his return date. I anticipate having the affidavit material finalised by Friday week.”
There is undoubted power in the Tribunal in these circumstances to dismiss these proceedings either because of Mr Hughes’ failure to attend, or because of the applicant’s failure to comply with the directions earlier made. I do not however propose at this time to exercise that power. I propose to give the applicant and Mr Hughes one last opportunity to comply with the direction. I will make a direction, in these terms:
“That these proceedings stand dismissed unless, on or before 4.00pm on 3 August 2007, or such further time as the Tribunal may, before that time, allow, the applicant gives to the Tribunal and to the respondent his witness statement and all other witness statements on which he intends to rely on at the hearing.”
It will be noted that I have given a week longer than the most recent communications from Mr Hughes suggests is necessary, however the history of the matter suggests that is perhaps a prudent course.
I will direct as well that a copy of these reasons and the direction be forwarded directly to the applicant as well as to Mr Hughes.
I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed:
..................................................................................
Eleanor O’Gorman, Associate
Date of Hearing 17 July 2007
Date of Decision 17 July 2007
The Applicant did not appear
Solicitor for the Respondent ATO Legal Services
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