Michael Jay Moorhead and and Commissioner of Taxation

[2012] AATA 240

[2012] AATA 240 

Division	TAXATION APPEALS DIVISION
File Number(s)	2011/4173
Re	Michael Jay Moorhead
APPLICANT
And	Commissioner of Taxation
RESPONDENT

File Number(s)	2011/4179
Re	RP4 Pty Ltd as trustee of the RD4 Discretionary Trust
APPLICANT
And	Commissioner of Taxation
RESPONDENT

DECISION

Tribunal	Deputy President PE Hack SC
Date	27 April 2012
Place	Brisbane

Each application is dismissed pursuant to s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth)

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Deputy President PE Hack SC

Catchwords

PRACTICE AND PROCEDURE – failure, within a reasonable time, to proceed – taxation – review of objection decisions – unable to obtain instructions – power to dismiss exercisable – application dismissed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 42A(5)

REASONS FOR DECISION

Deputy President PE Hack SC

27 April 2012

1. These applications were lodged in the Tribunal on 28 September 2011. In 2011/4173 Mr Michael Moorhead sought a review of objection decisions made by the Commissioner of Taxation on 28 July 2011 on Mr Moorhead’s objection to an amended assessment and a tax shortfall penalty for the 2006/2007 year. RP4 Pty Ltd, in its capacity as trustee of the RD4 Discretionary Trust, sought a review of objection decisions made by the Commissioner on its objection to an assessment and a penalty assessment for the 2006/2007 year. The applications were lodged by the Harris Group, chartered accountants, on behalf of each applicant.

2. The applications were discussed at a preliminary conference involving Mr Andrew Harris (for the applicants), a representative of the Commissioner and a Tribunal conference registrar on 8 December 2011. The conference registrar’s notes of that conference indicate that the applicants would provide further information to the Commissioner and that a further objection was to be lodged.

3. Following that conference the matters were listed for a further preliminary conference on 10 February 2012 and listing notices to that effect were sent to the parties. At the time appointed the conference registrar was unable to make contact with the applicants’ representative. A further conference was listed for 23 February 2012 and the parties again notified.

4. The conference registrar’s notes indicate that at that conference Mr Harris indicated that neither he nor the applicants’ lawyers had been able to obtain instructions from Mr Moorhead who was, he said, in the United States and “uncontactable”. Mr Harris had no instructions to lodge the further objection as had been earlier foreshadowed. The conference registrar made a direction on that day that the applicants advise the Tribunal and the Commissioner by 15 March 2012 whether the applicants intend to proceed with the applications. On that date Mr Harris sought an extension of time to comply with that direction until 19 March 2012. That extension was granted.

5. On 20 March 2012 Mr Harris sent a letter to the Tribunal. So far as is presently relevant the letter said,

   We have now received instructions via Mr Moorhead’s Australian based son, that his father is not in a financial position to further prosecute and/or conduct this matter with this firm or before the Tribunal. As such, our firm will no longer act for or on behalf of Mr Moorhead and RP4 Pty Ltd ATF in these proceedings.

   It was suggested that further correspondence be directed to Mr Moorhead’s solicitor, Mr David Tucker, at Tucker & Cowen.

6. The matter was listed for a conference on 20 April 2012 and notice given to Tucker & Cowen. On that occasion, when the conference registrar contacted the solicitors, she was informed that that firm did not have instructions to act for Mr Moorhead. Thereafter the matter was referred to me.

7. By virtue of s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal has power to dismiss an application without proceeding to review the decision if an applicant fails, within a reasonable time, to proceed with the application. In my view the applicants have failed, within a reasonable time, to proceed with their applications and the matter is otherwise one where the discretion to dismiss ought be exercised.

8. The applicants have done nothing to advance the proceedings in which they bear the onus of demonstrating that the assessments are excessive. Their accountants have informed the Tribunal that Mr Moorhead is not in a financial position to further prosecute or conduct the matter in the Tribunal. Mr Moorhead is, apparently, in the United States. It is not suggested that the position of Mr Moorhead will change in the foreseeable future such that there could be confidence that the proceedings would be prosecuted diligently in the future. In the circumstances I will, in each application, make an order dismissing the proceedings pursuant to s 42A(5) of the Administrative Appeals Tribunal Act.

I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC.

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Associate

Dated  27 April 2012

Date(s) of hearing On the papers