MXSN and Commissioner of Taxation (Practice and procedure)
[2025] ARTA 1399
•15 August 2025
MXSN and Commissioner of Taxation (Practice and procedure) [2025] ARTA 1399 (15 August 2025)
Applicant:MXSN
Respondent: Commissioner of Taxation
Tribunal Number: 2023/6663
Tribunal:Deputy President Thompson SC
Place:Perth
Date:15 August 2025
Decision:The application to vacate the substantive hearing listed in October 2025 is refused.
Statement made on 15 August 2025 at 8:40am
CATCHWORDS
PRACTICE AND PROCEDURE - TAXATION – application to vacate substantive hearing – further application to expand the grounds of review – Applicant permitted to argue additional submissions
LEGISLATION
ADMINISTRATIVE REVIEW TRIBUNAL ACT 2024 (CTH) – SECTIONS 9, 56(2)
TAXATION ADMINISTRATION ACT 1953 (CTH) – S 14ZZK
CASES
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 3
MXSN and Commissioner of Taxation [2025] ARTA 557Statement of Reasons
INTRODUCTION
On 29 July 2025, I heard an application brought by the Applicant to vacate the substantive hearing in this matter listed for October 2025, and an argument to further expand the grounds of review. The Applicant sought written reasons for making the decisions in respect of these matters, these are my reasons for doing so.
BACKGROUND
The Applicant is a company which provides taxation services to members of the public. Its sole director and shareholder is Mr P. In about early 2023 the Respondent (Commissioner) made default assessments for fringe benefits taxable value and fringe benefits tax (FBT) against the Applicant in respect to a 2010 Ferrari California car purchased by the Applicant and used by Mr P as his work vehicle. Following an unsuccessful objection, the Applicant commenced an application for review in September 2023. In the meantime, Mr P’s personal taxation affairs were also under consideration by the Commissioner. I am unaware of the detail of that review other than there is an objection currently on foot, and that FBT issues form at least part of the matters under consideration in Mr P’s personal taxation affairs.
The application for review of the Commissioner’s decision was filed with on 7 September 2023, following an objection decision made on 25 August 2023. On 30 October 2024, the Applicant filed its Statement of Facts, Issues and Contentions (October SFIC),[1] albeit, as a Statement of Issues, Facts and Contentions. In doing so it included contentions C3, C4, C5 and C6, four grounds it sought to argue which were not raised in the objection to the Commissioner.
[1] Notably, there had been eight previous deadlines made for the Applicant to file a SFIC: 1 May 2024, 7 May 2024, 31 May 2024, 21 June 2024, 12 August 2024, 2 September 2024 and 28 October 2024.
Section 14ZZK of the Taxation Administration Act 1953 (Cth) (TAA) limits a taxpayer to the maters raised in their objection, unless the Tribunal grants leave. The October SFIC sought to expand the grounds of review by default, that is, without an application having been made to the Tribunal. It was not until 27 February 2025 that the Applicant filed submissions in support of the application to expand the grounds, which date was after the date provided for in the directions I made on 11 February 2025.
On 24 March 2025, I heard the application by the Applicant to expand the grounds of review. Following the argument, I refused to permit reliance on grounds C3 and C4, and I gave leave for grounds C5 and C6 to be included.
On 27 March 2025, I made orders for the Applicant to file an amended SFIC and additional evidence in support of grounds C5 and C6, and for the Respondent to file its amended SFIC. I also listed the matter for a directions hearing on 29 July 2025, with a view to dealing with any issues arising before the substantive hearing, which had been listed in early March 2025 for three days, 14 – 16 October 2025.
On 7 April 2025, at the request of the Applicant, I provided written reasons.[2] Paragraph 29 of my reasons explained that the leave I granted did not give the Applicant a general opportunity to amend, nor to file evidence of a wider compass than that which was necessary for the prosecution of the permitted grounds C5 and C6 alone.
[2] [2025] ARTA 557.
On 3 June 2025, I granted an extension of time to the Applicant to file the amended SFIC and any additional evidence required in support of grounds C5 and C6.
On 7 June 2025, the Applicant filed and served a SFIC (June SFIC). On 3 July 2025, the Respondent filed a submission objecting to the Applicant’s amended SFIC on the ground that it was a supplementary SFIC which did not replace the October SFIC. Furthermore, there was material in the June SFIC which appeared to be a new ground and which was not included in the grant of leave made in March.
On 4 July 2025, the parties were informed that the June SFIC would be taken to be the amended SFIC filed pursuant to the orders made in March 2025. The parties were also advised that no new ground in the June SFIC could be relied on without leave being granted.
On 18 July 2025, the Applicant filed a further application for leave to expand the grounds of review, and, in effect, to retain both the October SFIC and the July SFIC, which in effect was a refusal of the Applicant to comply with the orders made in March 2025. The primary proposition as to the proposed new ground was that it was not a new ground, but merely a submission.
On 23 July 2025, the Applicant requested that Tribunal vacate the substantive hearing listed before me for 3 days commencing on 14 October 2025 in the following terms:
The applicant respectfully submits that the hearing scheduled for October should be vacated pending the Federal Court proceedings. Likewise, any application to receive evidence by video and any application for an enlargement of grounds should not be decided unless and until the Federal Court proceedings are concluded because: (a) the Tribunal should not finally determine a review where the Federal Court may set aside the Tribunal's decision to refuse the enlargement of grounds; (b) if the Tribunal's decision is quashed, the Tribunal will be required to consider whether to grant leave anew - at which point any further enlargement of grounds would be more appropriately considered; (c) the Tribunal as presently constituted should not make either decision by reason that it would create an apprehension of bias.
On 25 July 2025, the Respondent filed submissions objecting to the Applicant’s further application for leave to expand the grounds.
LEGAL FRAMEWORK
Section 9 of the ADMINISTRATIVE REVIEW TRIBUNAL ACT 2024 (CTH) (ART Act) provides:
The Tribunal must pursue the objective of providing an independent mechanism of review that:
(a) is fair and just; and
(b) ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and
(c) is accessible and responsive to the diverse needs of parties to proceedings; and
(d) improves the transparency and quality of government decision‑making; and
(e) promotes public trust and confidence in the Tribunal.
Section 56(2) of the ART Act provides:
Decision‑makers and their representatives
(1) In a proceeding for review of a decision, the decision‑maker and any person representing the decision‑maker must use their best endeavours to assist the Tribunal to:
(a) make the correct or preferable decision in relation to the proceeding; and
(b) achieve the objective in section 9.
Other parties and their representatives
(2) A party to a proceeding in the Tribunal (other than the decision‑maker in a proceeding for review of a decision) and any person representing the party must use their best endeavours to assist the Tribunal to achieve the objective in section 9.
CONSIDERATION
This proceeding has been in the Tribunal since September 2023. It has been the subject of multiple extensions of time to enable the Applicant to file a statement of facts, issues and contentions, to gather evidence and to enable other, potentially related matters regarding Mr P’s personal tax affairs, to reach a stage where they may be heard together. The other matters have not yet been filed with the Tribunal.
The objectives of the ART Act require, amongst other things, matters to be dealt with expeditiously, and section 56 of the ART Act places obligations on the parties to assist the objective in the ART Act being achieved.
In this case, and against the background of multiple delays to enable the Applicant the opportunity to put its case, it was not appropriate to grant a vacation of the substantive hearing. This is because:
(a)No proper basis for vacating the substantive hearing was articulated. Whilst it is said that there is an ‘appeal’ from the interlocutory decision in March 2025, no notice of filing of the appeal had been provided to the Tribunal by 29 July 2025, nor was there any proper explanation or evidence as to what the grounds of the appeal are, and why those grounds mean the substantive hearing listed for October 2025 should not go ahead.
(b)It appears that what was filed in the Federal Court is the subject of a competency objection by the Commissioner, which was conceded to be the case by the Applicant’s counsel. Despite an assertion from the bar table that the competency challenge would be the subject of an expedited hearing, no application for an expedited hearing had apparently been made.
(c)The ‘appeal’ was apparently filed on 5 May 2025 but not accepted for filing until 29 May 2025 and, as counsel for the Applicant informed me, used the wrong initiating form. No directions hearing had been set. This does not suggest to me any possibility that the Federal Court proceedings will be concluded in the near future, or that a final hearing is imminent. This is not intended as a criticism of the Federal Court, but rather appears to me to reflect the same lackadaisical approach to litigation taken by the Applicant in these proceedings.
(d)The Applicant failed to comply with the orders issued on 27 March 2025 requiring the filing of an amended SFIC by 3 June 2025, instead, following the granting of a further extension of time till 9 June 2025, filed the June SFIC. Counsel’s explanation for this was that he failed to reread the directions I made on 27 March 2025 when he came to draft the June SFIC. This rather frank admission does not assist the Applicant given, having been alerted to his incorrect view of what was required, Counsel chose to double down on the error rather than file an amended SFIC in compliance with the directions and the written reasons. This, along with the history of delay by the Applicant, is suggestive of an attitude that the Tribunal’s directions are merely advisory.
(e)As to whether any question of bias arose if I proceeded with the substantive hearing, it is hardly biased for me to hear and determine a matter in compliance with orders I made in March 2025, following a fully argued application.[3] The submission as to bias if I was to hear the substantive matter has the appearance of a concoction in an attempt to forum shop for a different member to hear the matter. If the Applicant wishes to make an application to have me recused on the grounds of ostensible bias, it will need to be put properly, rather than in an obscure manner unsupported by any particulars or evidence.
[3] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 3. This type of vaguely articulated suggestion of bias appears to be a pattern; on several occasions during the March interlocutory hearing Counsel made the comment during his oral submissions that I should ‘not be a mere cypher for the Commissioner’.
The proper course for the Applicant if it does not wish to proceed with the hearing listed for 14 – 16 October 2025, is to seek an injunction in the Federal Court in the appeal proceeding which is presently on foot. That was a course which was open to the Applicant to take prior to 29 July 2025, when it sought orders before me to vacate the substantive hearing. The Applicant, presumably on advice, chose not to pursue that course but instead used a directions hearing which had been set down in March 2025 to attempt to railroad the substantive hearing, without the benefit of filing any proper evidence in support of the request.
The filing of the June SFIC amounted to the Applicant not complying with orders made in March 2025, simply as a matter of its own choosing. That is not acceptable conduct. Any party, much less a legally represented party, acting in this manner does not fulfill the objectives of section 9 ART Act and is potentially in breach of section 56(2) of the ART Act.
I allowed the Applicant to rely on those parts of the June SFIC that were merely submissions in support of the two grounds which were permitted to be run by the orders made on 27 March 2025. No objection was raised by the Applicant to this course as their written submissions were to the effect that no new ground was sought to be added.
Prior to the commencement of the directions hearing, the parties were provided with a Minute of Proposed Orders dealing with the programming matters necessary to be resolved in the lead up to the substantive hearing, including an order which struck out those paragraphs of the October SFIC which had not been the subject of a grant of leave following my decision in March 2025. I took that course because neither of the parties had apparently given consideration to the directions that were required, and because the Applicant had failed to comply with the directions I made on 27 March 2025.
Despite this, the Applicant’s Counsel claimed to have no instructions and did not seek any adjournment to obtain telephone instructions as his instructor was not present at the hearing. It is not in keeping with the obligations in section 56 of the ART Act to attend a directions hearing with no proper instructions, nor to seek instructions if necessary when something is raised which is unanticipated.
ORDERS
For these reasons, I made the orders set out below.
1.Pursuant to paragraph 1 of the directions made 27 March 2025, the Applicant’s claim is limited to paragraphs 1 to 56 (save for subparagraphs 1.2 and 1.5), 80 to 87, and 90, of the Statement of Facts, Issues and Contentions filed on 30 October 2024.
2.On or before 1 September 2025, the Applicant is to file with the Tribunal and serve on the Respondent an outline of opening submissions, limited to 10 pages.
3.On or before 22 September 2025, the Respondent may file with the Tribunal and serve on the Applicant an outline of opening submissions, limited to 10 pages.
4.On or before 30 September 2025, the parties are to jointly file:
(a)a paginated and indexed hearing bundle containing all material they intend to rely on at the hearing;
(b)a paginated and indexed joint book of authorities; and
(c)a list of the T-Documents which they rely on in this matter.
5.The hearing bundle and joint book of authorities shall comply with either paragraph 4.3(b)(1) or (2) of the Federal Court of Australia’s Practice Note GPN-eBooks eBooks.
I certify that the preceding twenty-four paragraphs are a true copy of the reasons for the decisions herein of Deputy President Clare Thompson SC
..................................[sgd]..................................
Associate
Dated: 15 August 2025
Date of hearing: 29 July 2025 Counsel for the Applicant: Mr M Crowley Solicitors for the Applicant: Mossensons Counsel for the Respondent: Ms E Luck Solicitors for the Respondent: Australian Taxation Office Litigation and Legal Services
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