NYKS and Commissioner of Taxation (Practice and procedure)
[2025] ARTA 1874
•24 September 2025
NYKS and Commissioner of Taxation (Practice and procedure) [2025] ARTA 1874 (24 September 2025)
Applicant:NYKS
Respondent: Commissioner of Taxation
Tribunal Number: 2022/10579; 2022/10580
Tribunal:General Member J Dunne
Place:Melbourne
Date:24 September 2025
Decision:The Applicant’s application for reinstatement of these proceedings pursuant to section 102 of the Administrative Review Tribunal Act 2024 (Cth) is dismissed.
.............................[SGD].............................
General Member J Dunne
Catchwords
PRACTICE AND PROCEDURE – Applicant failed to meet Tribunal directions within a reasonable time – Proceedings dismissed under section 100 of the Administrative Tribunal Act 2024 (Cth) – Reinstatement application under section 102 dismissed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) (repealed) s 42A
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
Administrative Review Tribunal Act 2024 (Cth), ss 9, 56, 100, 102
Income Tax Assessment Act 1936 s 167
Taxation Administration Act 1953 (Cth) s 14ZZK, Schedule 1 s 350-10
Cases
Australian Gold Dealers Pty Ltd and Commissioner of Taxation [2025] ARTA 1133
Clinnick and Australian Securities and Investments Commission [2021] AATA 7
Djuric and Commissioner of Taxation [2025] ARTA 469
JBTJ and The Secretary for the Department of Social Services [2025] ARTA 464
KBHN and Commissioner of Taxation [2025] ARTA 970
NYKS and Commissioner of Taxation [2025] ARTA 1031
Statement of Reasons
ISSUE AND CONCLUSION
This case involves default assessments issued pursuant to section 167 of the Income Tax Assessment Act 1936 (Cth). Section 14ZZK of the Taxation Administration Act 1953 (Cth) provides that the Applicant has the burden of proof to demonstrate the assessments are incorrect and what they should be.
The Applicant’s proceedings[1] were dismissed by the Tribunal on 11 July 2025 pursuant to section 100 of the Administrative Review Tribunal Act 2024 (Cth) (“ART Act”). The reasons for dismissal are set out in NYKS and Commissioner of Taxation [2025] ARTA 1031 (“the dismissal case”). This case involves an interlocutory application by the Applicant for reinstatement of his proceedings pursuant to section 102 of the ART Act.[2]
[1] The Applicant filed his proceedings in 2022. On 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 proceedings that were not finalised before 14 October 2024 are continued and finalised by the Administrative Review Tribunal. Anything done in relation to any such proceeding before 14 October 2024 is taken to have been done by the Administrative Review Tribunal.
[2] As was noted at footnote 19 in Djuric and Commissioner of Taxation [2025] ARTA 46, section 102(9) of the ART Act is materially the same as the former provision section 42A of the Administrative Appeals Tribunal Act 1975 (Cth) which is now repealed. Cases on the former provision remain relevant.
For the reasons outlined below, I have concluded it is not appropriate for this case to be reinstated and dismiss the application for reinstatement.
REASONS FOR DECISION
Relevant legislative provisions and the Applicant’s application for reinstatement
Subsection 102(6) of the ART Act provides that if an application for reinstatement pursuant to subsection 102(5) is made on the grounds of error within 28 days after the notice of dismissal is received, the Tribunal may reinstate the proceedings if it considers the application was dismissed in error.
Subsection 102(7) of the ART Act provides that for certain dismissals (including a dismissal under section 100 of the ART Act) an application for reinstatement can be made within 28 days after the party receives notice of dismissal. Under subsection 102(9) the Tribunal can reinstate the proceedings if it considers it appropriate to do so.
The decision in the dismissal case was issued on 11 July 2025. The Applicant sought reinstatement on 6 August 2025 pursuant to section 102(5) of the ART Act. This was within the 28 day timeframe after the Applicant was advised of the dismissal decision, as 28 days after 11 July 2025 is 8 August 2025.
The Applicant’s application for reinstatement was stated to be pursuant to subsection 102(5). At the interlocutory hearing the Applicant conceded he could not point to an error on the Tribunal’s part in the dismissal case as is required for section 102(6) of the ART Act to apply.[3] I agree with that concession, there is no error in the reasoning in the dismissal case that would enliven the Tribunal’s power to reinstate the proceedings under subsection 102(6). For that reason, subsections 102(5) and 102(6) of the ART Act will not be considered further.
[3] JBTJ and The Secretary for the Department of Social Services [2025] ARTA 464, [25]-[39], [42]-[47]; KBHN and Commissioner of Taxation [2025] ARTA 970 [52]-[58].
The Applicant is self-represented, and the Tribunal discussed the other means by which he could seek a reinstatement – that is, pursuant to subsections 102(7) and 102(9) of the ART Act. The Commissioner has made submissions under those provisions as well as subsection 102(5) and 102(6) in any event.[4] In the light of that, the Tribunal allowed the Applicant to pursue reinstatement under subsections 102(7) and 102(9) and the remainder of this decision deals with the Applicant’s application for reinstatement on that basis. That means I have considered the Applicant’s reinstatement case on the basis that he is seeking reinstatement saying the Tribunal should reinstate the proceedings because it should consider it appropriate to do so.
[4] Respondent’s Submissions re Application for reinstatement under section 102(5) of the ART Act dated 29 August 2025 (“Commissioner’s Submissions”) [5] and following.
Factual background and reasons for dismissal
The dismissal case sets out the procedural history in detail and I will not repeat that detailed background.[5] The short point is that on more than sixteen occasions between May 2023 and July 2025 the Applicant was engaged with and at various points ordered to file evidence and otherwise progress the proceedings. In addition, the Tribunal has set this matter down for hearing on two occasions (March 2025 and May 2025) and had to vacate those dates due to the Applicant’s non-compliance. This matter has also been set down for a conciliation that also had to be vacated.
[5] NYKS and Commissioner of Taxation [2025] ARTA 1031, [4]-[21].
The Applicant has raised two issues that have prevented him from proceeding:
(a)The first relates to funding for legal advice. As recorded in the dismissal case at [5], the Applicant advised the Tribunal on 20 March 2025 that he was self-represented and in April 2025 that he was anticipating funding which he would use to engage legal advisers. In July 2025, the Tribunal was advised that the funding had not arisen. The Applicant’s Affidavit dated 6 August 2025 (“Applicant’s Affidavit”) which accompanied the reinstatement application records the same issue at [6a] to [9]. (“the funding issue”). The Applicant says that one of the reasons for the funding issue was the need to direct funds to a criminal proceeding that the Applicant was facing.
(b)The second relates to the Applicant’s mental health issues. The Applicant’s Affidavit raises this issue at [6b], [10]-[12]. The Applicant’s Affidavit annexes a letter from a medical practitioner which confirms the Applicant suffers from a depressive disorder. In the dismissal case, this is also recorded at [37].
The dismissal case took both of these issues into account and determined the proceedings should be dismissed because (in summary):
(a)The Applicant had demonstrated a pattern of non-compliance and has not progressed his proceedings. He had been afforded multiple extensions of time and had not satisfied his obligations. The funding issue had been around since January 2025 at least, and there was nothing other than vague timeframes offered for its resolution.[6]
(b)While the Applicant’s ill-health is unfortunate, it is a continuing matter and is not the driving factor for delay. The funding issue is.[7]
[6] NYKS and Commissioner of Taxation [2025] ARTA 1031, [31]-[34], [38].
[7] Ibid, [37].
Submissions before the Tribunal on reinstatement
The Commissioner’s Submissions are against reinstatement. Those submissions are to the broad effect that:
(a)The funding issue does not provide a reasonable explanation for the Applicant’s delay in meeting the Tribunal’s orders. He has diverted funds to other obligations (it is understood this includes the criminal matter referred to above) and there remain nothing but vague timeframes for that issue to be resolved.[8]
(b)The Applicant’s ill-health is a constant, the proceedings cannot be delayed endlessly, and despite his ill-health the Applicant has been able to focus on other matters (such as the criminal matters).[9]
(c)The Applicant’s case has little merit. It is a case involving default assessments. He has focussed on matters such as unsuccessfully seeking summons from the Commissioner rather than preparing his case to meet his burden of proof. The evidence he has produced which purports to be expert evidence is entirely deficient and will be subject to significant challenge by the Commissioner if the case proceeds.[10]
(d)There is prejudice to the Commissioner due to continuing delay, increased cost, and the potential for the effluxion of time to cause evidence to be lost, destroyed or adversely impacted.[11]
(e)The public interest is in the efficient conduct of proceedings and the efficient utilisation of the Tribunal’s resources. These proceedings are contrary to the public interest.[12]
[8] Commissioner’s Submissions [7].
[9] Commissioner’s Submissions [8]-[9].
[10] Commissioner’s Submissions [11].
[11] Commissioner’s Submissions [12].
[12] Commissioner’s Submissions [13]-[14].
The Applicant’s Affidavit supports his application for reinstatement. The Applicant’s case is that:
(a)The funding issue and his health issues comprise exceptional circumstances which prevented his compliance with the Tribunal’s orders.[13]
(b)If given further time he may be able to raise further funds to resolve the funding issue. It is suggested that seven months is required, and he would be amenable to a check-in process in two months.[14] At the interlocutory hearing before the Tribunal the Applicant suggested those timeframes were not correct, and he needed 45 days to determine if he could get funding.
(c)His health has been poor, and he has no legal training or background that would enable him to put his case in the best light given his health issues.[15]
(d)His case is meritorious. He maintains that the purported expert evidence from Mr H demonstrates an analysis of the bank account material with supporting invoices and receipts which explains why the Commissioner’s default assessments are excessive.[16]
(e)The prejudice he faces is significant – he will be denied a hearing, he fears bankruptcy. This outweighs the inconvenience or delay for the Commissioner or the Tribunal. He is asking for nothing to be done until he has legal representation so there should be no cost or other burden on any other party.[17]
[13] Applicant’s Affidavit [6]-12].
[14] Applicant’s Affidavit [9].
[15] Applicant’s Affidavit [10-[12].
[16] Applicant’s Affidavit [14].
[17] Applicant’s Affidavit [15]-[20].
Following the interlocutory hearing, the Tribunal gave the parties a short period of further time (3 working days) to prepare and file final short written submissions if they wished to do so.[18] Despite the Tribunal’s written directions specifying that extensions of time to file such submissions would not be entertained, by email dated 10 September 2025, the Applicant sought more time to provide those written submissions (which was not granted). The Applicant stated:
I am now arranging the necessary funds, which will take up to 60 days to be available. In order to finalise the work required by my accountants and legal representatives, I respectfully request an additional one month after that 60-day period. This would allow me to provide all submissions, including the SIFC.”
[18] The Commissioner confirmed by email dated 11 September 2025 that it would not file further submissions.
Following the time extension request being rejected, the Applicant provided an email dated 11 September 2025 summarising its case which said:
I have filed evidence in the substantive Application showing that I have been under audit by the ATO since 2018 for the 2017 and 2018 income years. Since then, I have made every effort to comply with the requirements of the audit and subsequent dispute process. This has included engaging multiple independent forensic accountants and legal professionals at significant personal cost — approximately $300,000 in total.
Evidence from one of those professionals [Mr H] has been filed in the substantive matter.
Despite commissioning detailed reports from [Mr G, Mr M and Mr H], all of which identified legitimate business expenses that I had incurred in the years in question, the ATO has repeatedly rejected these submissions in their entirety. Even basic, clearly identifiable business expenses such as Telstra, Vodafone, and Optus bills paid by the company’s AMEX (and reimbursed by the company account) have been disallowed and instead treated as personal income.
I submit that this approach is inconsistent with both the evidence provided and the principles outlined in the ATO’s own charter. Had the audit been conducted in accordance with those principles, much of this dispute could have been avoided.
In relation to the Reinstatement Application, I wish to emphasise that I am not seeking to waste the Tribunal’s time. On the contrary, I have exhausted significant resources and suffered both financially and personally in my ongoing efforts to resolve this matter. I am currently managing both health issues and a separate criminal matter which required urgent funding, further limiting my capacity to engage in this matter. Nonetheless, I remain fully committed to finalising this process; hence the filing of the Reinstatement Application.
In my most recent affidavit filed in support of the Reinstatement Application, I identified the very significant consequences that I am currently facing, namely, bankruptcy. I also identified what I say is only slight prejudice to the Respondent if my Reinstatement Application is granted, as the next step in the matter, should my Reinstatement Application be granted, falls to me in terms of the filing of the SFIC. The Respondent merely has to sit on its hands and wait for me to do so and that is only required until December [2025].
If given this final opportunity, I will do my absolute best to ensure all submissions, including the SIFC, are lodged by the first week of December 2025. This will be my last request for an extension, and I am confident that with this additional time I can present a complete and properly supported case.
Legal analysis – power of reinstatement under subsection 102(9) of the ART Act
The principles that the Tribunal considers when determining whether to reinstate proceedings under subsection 102(9) of the ART Act were set out in Djuric and Commissioner of Taxation [2025] ARTA 469 (“Djuric”), and followed in KBHN and Commissioner of Taxation [2025] ARTA 970 (“KBHN”) and Australian Gold Dealers Pty Ltd and Commissioner of Taxation [2025] ARTA 1133.
Djuric sets out four factors when considering whether it is appropriate to reinstate proceedings that were dismissed pursuant to section 100 of the ART Act:
(a)The explanation for the issue that resulted in the dismissal;
(b)The merits of the substantive case;
(c)Prejudice to the parties. In KBHN at [61] the Tribunal considered that prejudice to other litigants is an issue here as well. I consider that to be part of the next factor, the public interest. That is of no particular importance at all; as I certainly agree it is a relevant consideration;
(d)The public interest – this includes meeting the objectives of the Tribunal and the interests of justice.
Explanation for the issue that resulted in dismissal
The issue that resulted in dismissal involved the Applicant failing to meet directions. The Applicant’s explanation related to the funding issue and his health.
In relation to the funding issue, I do not accept that is a reason for a complete failure on the part of the Applicant to engage with the Tribunal prior to timeframes expiring. Legal skill is not required for the Applicant to engage with the Tribunal on timetabling prior to time periods expiring. He repeatedly failed to do so. In addition, as is noted below[19] the evidence on the file suggests that the diversion of funding for a criminal matter ended two years ago, when criminal proceedings were dismissed. No real detail has been provided of the criminal issue.
[19] See paragraph 30 below.
Perhaps the most telling failure was the last one recorded in the dismissal case, where three months passed without the Applicant engaging with the Tribunal and he made no effort to comply with the Tribunal’s last directions of 30 June 2025 despite those directions clearly being to the effect that his proceedings would be automatically dismissed unless he met those timeframes. Once again, there was no engagement by the Applicant. The Applicant took the risk and bore the consequences in the dismissal case. He was clearly warned by the Tribunal. The outcome was his own doing.
The other reason given relates to the Applicant’s poor health. I agree with the dismissal case that this issue does not substantively form the rationale for the delay, and the real issue is the funding issue. I agree with the Commissioner that this is an ongoing issue and did not prevent the Applicant from focusing on other issues.
I understand that the Applicant’s ill-health is raised as an explanation for why the Applicant does not believe that he can represent himself, and this is a further reason why the funding issue is so critical. The problem for the Applicant is that while that might be so, there is a pattern of vague unfulfilled promises to resolve the funding issue, and an array of timeframes provided with the only consistency being them not being met. It is not something that appears likely to change, given various timeframes raised at the reinstatement hearing. At some point he needed to pursue his case on his own or withdraw it. At the latest, the Tribunal’s directions of 30 June 2025 were that point.
The Tribunal’s assessment is that the Applicant’s reason for the issue that resulted in the dismissal is not a satisfactory explanation. I have concluded that this factor is not in favour of reinstatement.
The merits of the substantive case
When considering this factor, the case law as summarised in Djuric is to the effect that the assessment of the merits is “necessarily superficial”.[20] In KBHN the Tribunal determined the test for there being no merits was whether the Applicant’s case is “entirely hopeless” or “without any prospects.”[21]
[20] Djuric [13b] citing Clinnick and Australian Securities and Investments Commission [2021] AATA 7, [26].
[21] KBHN [115]-[120].
In the current matter, the Applicant points to what he says is “expert evidence” of Mr H, and says the funding issue is preventing him from seeking further expert evidence which will resolve the issues between himself and the Commissioner about the default assessments that have been issued.[22] The Commissioner finds the evidence of Mr H wanting and says it will challenge the admissibility of that evidence if the matter progresses.[23]
[22] Applicant’s email dated 11 September 2025.
[23] Commissioner’s Submissions [11].
Mr H’s report,[24] such that it is, does not meet the requirements to be an expert report. For instance, there are no instructions to him, there is no indication that he has considered the requirements of an expert report including Tribunal Practice Directions for Expert Reports.
[24] Report of Mr H dated 10 November 2023 (“Mr H’s report”).
The attachments to Mr H’s report comprise (in the main) bank statements and invoices[25] that are hand marked suggesting some line items are business items. All Mr H does in substance is say the hand markings on bank statements and invoices are right in his view. Mr H’s opinion of that has little to no bearing on what the default assessments should be in fact (which is what the Applicant needs to demonstrate). Mr H goes on to suggest that the Commissioner’s assessment is not a “bona fide attempt to raise assessment of taxation.” Mr H’s view is irrelevant and not evidence. The statutory provisions deem the Commissioner’s assessments to be correct.[26] Despite the Applicant’s submissions, my assessment at a superficial level is that Mr H’s report is of very minimal value and does not come close to meeting the Applicant’s burden of proof.
[25] It is noted that some invoices are issued by an entity that has exactly the same address as the entity that is purportedly charged the cost at issue and no explanation is provided by Mr H.
[26] Section 350-10 of Schedule 1 to the Taxation Administration Act 1953 (Cth).
In any event, Mr H’s report appears to be an ‘interim document’ or ‘personal statement’ as it records that Mr H expected more evidence to be obtained on summons before drafting a final report.[27] No summons were issued. The Commissioner’s Submissions refer to this period of these proceedings immediately after Mr H’s report and in 2024 as the Applicant causing considerable delay and expense for all parties by making unsuccessful summons requests and inflammatory allegations against the Commissioner rather than focusing on working through his evidence to meet his burden of proof.[28]
[27] Mr H report [18]-[19].
[28] Commissioner’s Submissions [11].
In his 11 September 2025 email to the Tribunal the Applicant also refers to reports from Mr G and Mr M. I see no material on the T documents that purports to be anything like a “report” from Mr G. Mr M prepared the objection, so I assume that is what is referred to. This is not evidence.
At the interlocutory hearing, the Applicant advised the Tribunal that business bank accounts were comingled with his personal expenditure, and he only had credit cards, no other bank accounts. The Applicant’s objection dated 4 May 2022 says that the Applicant’s stated banking arrangements were connected to fraud charges[29] that are said (by Mr H) to have been later dismissed against the Applicant[30] and some resistance from the Applicant’s bank to providing him an individual account. If these criminal proceedings are a part of the cause of the funding issue, they were, according to Mr H, dismissed in July 2023 – more than two years ago. The Applicant said that the Commissioner’s assessments were incorrect as the Commissioner had not even identified what were obvious business expenses nor what was obvious income of another taxpayer such as a related company or the Applicant’s spouse.
[29] T7.1-112 [4.3.2], T7.1-113 [5.1.1].
[30] Mr H report [23].
The task for the Applicant is to satisfy the Tribunal on the balance of probabilities that the Commissioner’s default assessments are excessive and what they should have been. What is currently before the Tribunal does not come close to meeting that burden. In saying that, there is so little before the Tribunal and there is said to be other material, so I cannot assess the Applicant’s case as without prospects or hopeless. It is difficult to make an assessment at all due to the hopelessly thin filings from the Applicant to date.
The Applicant’s failure to meet directions cannot benefit him in the assessment of this factor, however. It would be wrong for me to say just because the Applicant has not filed anything meaningful, nor met the Tribunal’s directions to do so, that he somehow gets the benefit of the doubt he has created when assessing this factor. If I was to assess the merits of the Applicant’s case from what has been filed to date, I would consider it unmeritorious. The Applicant says there is more evidence to be presented, however.
In the circumstances, I assess this factor as neutral.
Prejudice to the parties
The next question is whether there is prejudice to the parties. If the Applicant’s case was not reinstated there would be prejudice in him not being able to have his case heard. That is prejudice to him.
The Applicant says there is no real prejudice to the Tribunal or the Commissioner as all that would be required is for the Commissioner and Tribunal to sit on their hands and wait until the Applicant advises whether the funding issue is resolved. This misguided submission is rejected.
This case was filed in 2022. Three years have passed. Multiple engagements have occurred with the Applicant. The prejudice to the Tribunal is in it allocating any resources to a case where the Applicant is not prepared to proceed in anything like a prompt manner. Public money has already been spent on numerous directions conferences, on dealing with summons requests in interlocutory hearings, on setting down hearings and the conciliation, on chasing the Applicant, and on having to vacate dates. The Applicant is requesting this continues and that more public money is outlaid checking on the Applicant and waiting for the matter to proceed. The Applicant’s actions to date are prejudicial to the justice system.
For the Commissioner, public money has been spent on counsel, external solicitors, on staff allocated to this matter, on correspondence with the Applicant, and on chasing the Applicant. Public money has been spent on attendances at directions conferences, interlocutory hearings, and on engagement with the Tribunal. As the Commissioner points out,[31] the constant delays cause costs for counsel having to continually refresh memory of this case, and may impact available evidence as time drifts on. I agree with that submission. The Applicant is requesting this continues. I recognise there is prejudice to the Applicant, but there is also serious prejudice to the administration of justice.
[31] Commissioner’s Submissions [12].
While I recognise the prejudice to the Applicant, the level of delay that has occurred as a result of his actions is significantly prejudicial to the administration of justice and to the Commissioner in terms of its appropriate spending of public money. This factor is, on balance, against reinstatement.
Public interest
There are competing issues. There is a public interest in the Tribunal being able to meet its objectives. Those objectives include the following:
(a)Ensuring issues in dispute are resolved as quickly and with as little formality and expense as a proper consideration of the matters before the Tribunal permits.[32] The Applicant’s failures to meet the Tribunal’s ordered timetables undermine that objective. As was recorded in the dismissal case, there are more than 100,000 cases before the Tribunal and timetabling is an important feature of managing such a workload. Cases like the Applicant’s that involve consideration of default assessments do not drift on for years as the Applicant’s has. Cases with more complex facts than the Applicant’s do not drift on for years as the Applicant’s has. A proper consideration of the Applicant’s issues does not require years to pass.
(b)Another objective is for the Tribunal to be “fair and just”.[33] It is neither fair nor just for one party to meet its obligations (the Commissioner) while the other party (the Applicant) has repeatedly failed to do so.
(c)In addition, the Tribunal expects its directions to be respected, and they have not been. Disrespecting the Tribunal by not meeting orders or directions without a substantive reason is taken very seriously as this does not promote public trust and confidence in the Tribunal, which is another objective.[34] It is the Tribunal that sets timeframes, not the Applicant.
(d)Another objective is ensuring the Tribunal is accessible and responsive to the diverse needs of parties.[35] The Tribunal has in this case given the Applicant a lot of leeway. He is currently self-represented. He has been given a lot of time.
[32] Subsection 9(b) of the ART Act.
[33] Subsection 9(a) of the ART Act.
[34] Subsection 9(e) of the ART Act.
[35] Subsection 9(c) of the ART Act.
The other major issue of public interest is the interests of justice. Applicants are entitled to be heard. The Applicant in this case wants to have his case heard.
This issue for me to consider is whether the historic problems in this case will be resolved if this matter is reinstated. I am troubled by the Applicant’s approach to the interlocutory hearing of his reinstatement application. It was more of the same. Varying timeframes were given by the Applicant to the Tribunal for when the funding issue may be resolved:
(a)Seven months from August 2025 in which he may be able to obtain funding.[36]
(b)45 days from the interlocutory hearing date of 8 September 2025 to potentially obtain funding and then further time after that to prepare the material.[37]
(c)60 days after the 10 September 2025 email for funding to potentially be available and then an additional month for material to be prepared.[38]
(d)Until the first week of December 2025 for the Applicant to obtain funding, and the Applicant “would do [his] absolute best” to ensure all submissions are lodged by the first week of December 2025.[39]
[36] Applicant’s Affidavit [9].
[37] Interlocutory hearing 8 September 2025.
[38] Applicant’s email dated 10 September 2025.
[39] Applicant’s email dated 11 September 2025.
The Applicant has not changed his approach in the reinstatement case from his approach which resulted in the dismissal case. The dismissal case should have put him on notice that he needed to take prompt action and adopt a different approach. He has provided no certainty of when material will be filed. His actions demonstrate a pattern of promises, and he makes varying submissions of dates when funding may or may potentially be available with (at best) vague timeframes of when material may then be filed thereafter if funding is obtained. There is no evidence of where this funding may come from there is no certainty it will arise at all. Given the history to date, I have no confidence. He has made no efforts himself to try and file anything of substance. A number of years have passed since these proceedings were filed and the Applicant has been given plenty on leeway to get on with his case. He was very clearly warned of the consequences.
The history of this matter and the Applicant’s submissions at the reinstatement hearing gives me absolutely no confidence that these proceedings will be progressed appropriately.
We have already had a drift of time just in 2025 of at least 9 months. Quite simply, this is not how the Courts and the Tribunal work when managing proceedings. The Australian public rightly expects that public funds are spent on the Courts and Tribunal deciding cases, where applicants are prepared to proceed and meet the Tribunal’s directions to get to a hearing. Endless rounds of directions conferences with no end in sight is not in the interests of the justice system.
In my assessment, it is not in the public interest to allow this matter to be reinstated. This factor is against reinstatement.
CONCLUSION
On balance, I have decided that it is not appropriate for the Applicant’s proceedings to be reinstated under section 102(9) of the ART Act. As a result, I dismiss the Applicant’s application for reinstatement.
1.
.............................[SGD].............................
General Member J Dunne
Dated: 24 September 2025
Date of interlocutory hearing:
8 September 2025
Advocate for the Applicant:
Self-represented
Counsel for the Respondent:
Mr C Peadon
Solicitors for the Respondent:
McInnes Wilson Lawyers
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