Nathan Carey and Commissioner of Taxation

[2014] AATA 919

[2014] AATA 919

Division	TAXATION APPEALS DIVISION
File Number	2014/4037
Re	Nathan Carey
APPLICANT
And	Commissioner of Taxation
RESPONDENT

DECISION

Tribunal	Deputy President P E Hack SC
Date	5 December 2014
Date of written reasons	11 December 2014
Place	Brisbane

The application for reinstatement is refused.

........................[Sgd]...........................................

Deputy President P E Hack SC

CATCHWORDS

PRACTICE AND PROCEDURE – reinstatement – application dismissed after failure to comply with direction – no error in decision to dismiss – reinstatement refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 42A(10)

CASES

Carey and Commissioner of Taxation [2014] AATA 762

REASONS FOR DECISION

Deputy President P E Hack SC

11 December 2014

1. This is an application by Mr Nathan Carey for reinstatement of his application to review certain objection decisions made by the respondent, the Commissioner of Taxation.  That application was dismissed on 13 October 2014, by virtue of Mr Carey’s failure to comply with the Direction made on 9 October 2014. The history of the matter is set out in the Reasons for Decision given by Senior Member McCabe on 22 October 2014

   
   

   ([2014] AATA 762).

2. The discretion to reinstate is conferred by s 42A(10) of the Administrative Appeals Tribunal Act 1975 (Cth) in these terms:

   If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

3. As is apparent, what must first be shown is that the application was dismissed in error.  It is thus necessary to identify the supposed error and the connection between it and the dismissal.  Here, the dismissal occurred as a result of the applicant’s failure to comply with the Direction of 9 October 2014, which said

   This proceeding will stand dismissed unless on or before 4pm 13 October 2014, or such further time as the Tribunal may, before that time, allow, the applicant files with the Tribunal and serves on the respondent a Statement of Facts, Issues and Contentions, together with any witness statements and other evidence on which he intends to rely at hearing

4. Senior Member McCabe concluded, on 22 October 2014, that the single document provided by Mr Carey’s representative, Mr Watts, a document described as ‘Applicant’s Written Submissions’, did not answer the description of a Statement of Facts, Issues and Contentions and that, accordingly, there had been a failure to comply with the Direction of 9 October 2014.  The result was that the proceedings had been dismissed and necessarily had been dismissed as a consequence of that Direction, not any conclusion reached by Senior Member McCabe on 22 October 2014. 

5. Mr Watts submits today that the error was in reaching that conclusion.  I do not consider that that could be the operative error but ultimately I need not decide whether that is so or not because, having regard to the matters identified by the Senior Member in his decision, I do not consider his view erroneous. That is, I consider that he was right to hold that the document lodged with the Tribunal on 11 October 2014 was not a

   
   

   Statement of Facts, Issues and Contentions as that document is described in the Tribunal’s General Practice Direction. 

6. Accordingly, on the way in which the matter is framed, identifying the error in that way, if, contrary to my preliminary view, that was the operative error, I do not consider that the view taken by the Senior Member was erroneous.  I agree entirely with the views expressed by the Senior Member in his reasons of 22 October 2014.

7. In those circumstances, I refuse the application for reinstatement. 

I certify that the preceding 7 (seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

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Associate

Dated 11 December 2014

Date of hearing	5 December 2014
Advocate for the Applicant	G Watts, Taxation Guru Pty Ltd
Solicitors for the Respondent	S Turner, Australian Taxation Office