NYKS and Commissioner of Taxation (Practice and procedure) - [2025] ARTA 1031

NYKS and Commissioner of Taxation (Practice and procedure) [2025] ARTA 1031 (11 July 2025)

Applicant/s:  NYKS
Respondent:  Commissioner of Taxation
Tribunal Number:                2022/10579, 2022/10580

Tribunal:Senior Member J Lye
Place:Brisbane
Date:11 July 2025
Decision:The applications are dismissed pursuant to s 100 Administrative Tribunal Act 2024 (Cth)

Catchwords

PRACTICE AND PROCEDURE – Applicant sought review of taxation decision – Applicant given directions to file statement of facts issues and contentions and evidence – Applicant repeatedly failed to meet Tribunal directions within a reasonable time – Application dismissed.

Legislation

Administrative Review Tribunal Act 2024 (Cth) – s 9; s 100; s 102
Taxation Administration Act 1953 (Cth) – s 14ZZK

Cases

Charara v Commissioner of Taxation [2016] FCA 451
Federal Commissioner of Taxation v Dalco (1990) 168 CLR 614
Gashi v Commissioner of Taxation (2013) 209 FCR 301
Guse v Comcare [1997] FCA 140; (1997) 49 ALD 288

Statement of Reasons

These reasons address the Tribunal’s decision made on 10 July 2025 to dismiss the Applications under s 100 of the Administrative Review Tribunal Act 2024 (Cth) (the Tribunal Act).
On 22 December 2022, the Applicant filed with the Administrative Appeals Tribunal an application for review of an objection decision by the Commissioner of Taxation (the Respondent) that he should be assessed for income tax and administrative penalty for the financial years ended 30 June 2017 and 2018.
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 in that were not finalised before 14 October 2024 are continued and finalised by the Administrative Review Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Administrative Review Tribunal.

History of the Proceedings

The Applicant commenced these proceedings more than 2 ½ years ago but they have failed to progress to final hearing. The proceedings were listed for a conciliation hearing on 31 March 2025 which had to be vacated due to the Applicant’s non-compliance. They were also listed for a 5-day hearing commencing 19 May 2025 which the Tribunal reluctantly vacated on application from the Applicant. They are currently listed for hearing for 5 days commencing 13 October 2025.
The Applicant was legally represented until March 2025. He has engaged more than one firm to represent him over the course of the proceedings. On 20 March 2025, the Applicant wrote to the Tribunal to advise he would now be self-represented but in late April 2025 advised that upon receipt of some family funds he would be re-engaging his legal team. On 10 July 2025, the Tribunal and the Respondent were informed that this has not occurred.
I have briefly summarised below, the history of the delays associated with the proceedings which are relevant to these reasons:

On 15 May 2023, the Applicant was directed to file evidence and Statement of Facts, Issues and Contentions (SFIC) on or before 16 June 2023. This direction was varied on 23 June 2023 to require lodgement by the Applicant on or before 8 July 2023;
On 20 July 2023, that direction was further varied to require filing by the Applicant on or before 15 September 2023;
On 4 October 2023, the Applicant lodged his SFIC but did not file any evidence;
On 9 October 2023, the Respondent was directed to file SFIC and evidence on or before 20 November 2023, but this direction was vacated on 29 November 2023 and on 31 January 2024 the Respondent’s SFIC was lodged;
In early 2024, there was an interlocutory dispute about a summons. The Tribunal ruled on this dispute on 8 March 2024;
On 25 July 2024, the Applicant filed a statutory declaration explaining his lack of compliance with Tribunal directions;[1]
On 7 August 2024, the Applicant was directed to advise the Tribunal by 16 August 2024 whether he would proceed with his application;
On 26 August 2024, the Applicant was directed to file any amended SFIC and his evidence (collectively his material) by 20 September 2024;
On 29 November 2024, the Tribunal directed the Applicant to file his material by 3 March 2025. The Tribunal also listed the application for conciliation and for hearing in 2025;
The Applicant failed to file his material by 3 March 2025. Neither the Applicant nor his solicitor advised the Tribunal of any anticipated delay, and no extension of time was sought for compliance with the Tribunal’s directions.
[1] Applicant’s statutory declaration dated 25 July 2024.

The Tribunal, upon detecting the Applicant’s further failure to file his material on 3 March 2025, listed the proceedings for a directions hearing. The Applicant, via his former solicitor, then lodged medical certificates with the Tribunal on 6 March 2025 and 27 March 2025. Both certificates identified that he suffered from a depressive illness which could cause him difficulty in managing his application, unrepresented.
In the meantime, the Tribunal directed the Applicant’s solicitor to file an affidavit deposing to the steps taken by or on behalf of the Applicant to progress the application between 29 November 2024 and the date of the affidavit, including any engagement with the Respondent during the period. The Tribunal also asked the Applicant to confirm whether he was seeking vacation of the final hearing listed to commence on 19 May 2025.
A statement, filed with the Tribunal by his former solicitor,[2] informed the Tribunal that both the former solicitor and counsel had taken steps from 29 November and into December 2024 to progress preparation of the material. It seems that on 16 January 2025 the former solicitor also took care to advise the Applicant of the key dates for compliance the Tribunal’s directions and in particular, the due date for the filing of his material.
[2] Statement of former solicitor dated 24 March 2025.
Relevantly, the former solicitor also provided a revised estimate of fees to the Applicant in January 2025, for the costs associated with the proceeding. Thereafter it seems the former solicitor was unsuccessful in his attempts ahead of the filing date to engage with the Applicant about the need to progress the material.
Between 3 March 2025 and 22 April 2025, the Tribunal engaged proactively with the parties in an attempt to case manage the proceedings via multiple directions hearings. Unfortunately, the conciliation could not proceed without the Applicant’s material being filed and so it was vacated.
On 22 April 2025, the Applicant (now self-represented) lodged with the Tribunal an unsworn affidavit seeking to vacate the hearing listed to commence on 19 May 2025. He cited ongoing health concerns and his need to obtain further funding to re-engage his legal team as the reasons for the application. He told the Tribunal he required 3 months to secure the funding and file his material.
In making his application, the Applicant acknowledged that his health conditions were ongoing, and his priority in seeking the adjournment was to engage legal representation. Without that, he said he would have difficulty proceeding. He told the Tribunal he had obtained some assistance from his former legal team in framing his application for adjournment.
On 22 April 2025, the Tribunal, with reluctance, vacated the hearing dates and allowed the Applicant one final extension of time, until 15 July to file his SFIC and evidence. In granting that adjournment of the hearing and the further extension of time, the Tribunal made a self-executing direction which it explained to the Applicant would operate to automatically dismiss the proceeding should he not comply with the direction to file his material by 4.00pm on 15 July 2025.
The Tribunal expressly warned the Applicant this would be his final opportunity to file his material. It was also made clear to the Applicant that the operative reason for the adjournment was to allow him to seek legal representation, and not his health condition.
On 30 June 2025, the Tribunal, not having received any change of representative form from the Applicant, sought an update from him ahead of the due date for filing of his material. The Tribunal’s Member Support Team engaged with the Applicant by telephone and reminded him that should he have a valid reason for seeking an extension he needed to write to the Tribunal about that prior to 15 July 2025. The Applicant said he would consult his legal representative but declined to identify who they were.
On the same day the Tribunal issued a direction requiring:

the Applicant to advise the Tribunal and the Respondent by 2 July 2025, whether he had secured legal representation and the name/s of those representatives; and
The Respondent to write to the Applicant, expressly drawing his attention to the self-executing direction which would take effect on 15 July 2025.

The Applicant failed to respond to the 30 June 2025 direction and did not otherwise engage with the Tribunal or the Respondent.
The Tribunal then listed the applications for a directions hearing on 10 July 2025 (the earliest date on which the Applicant was available).
On 10 July 2025, the parties attended the directions hearing. The Applicant attended, unrepresented. The Tribunal heard from both parties. When asked why his application should not be dismissed, the Applicant informed the Tribunal:

He had obtained funding but had decided he needed to use that funding for unrelated criminal proceedings;
Those proceedings would not be resolved quickly;
He had thought he would have sufficient funds to pay for legal representation in both his criminal and these proceedings but lately had been forced to the view that he will need further funds to pay for representation in these proceedings;
He might be able to obtain further funding to re-engage his legal team;
He had recently been unwell with COVID;
He continues to suffer from depression;
he is working on a SFIC with a friend (not a lawyer). He wasn’t sure it would be ready to file by 15 July 2025 but said, ‘I might get it done. You never know’;
He had not turned his mind to the question of evidence;
He could not explain why he had not attempted to proactively engage with the Tribunal or the Respondent about these issues;
He did not explain why he had not complied with the Tribunal’s direction of 30 June 2025;
He could not say how long it would take him to obtain funding or prepare his material; and
He acknowledged the Tribunal, and the Respondent had been generous in allowing him the additional time he had already sought.

When pressed, the Applicant said he would like a further extension or an opportunity to provide submissions as to why he thought one should be granted. However, he acknowledged that he had no additional reasons to provide about the adjournment – he had already disclosed all the relevant reasons to the Tribunal.

Reasons for the dismissal of the proceedings

Section 100 of the Tribunal Act permits the Tribunal to dismiss an application if the Applicant fails either to:

proceed with the application; or
comply with the Act or an order of the Tribunal in relation to the proceeding.

As the Federal Court has observed,[3] the Tribunal’s power to dismiss a proceeding supports its objectives. Section 9 of the Tribunal Act relevantly obliges the Tribunal to pursue the objective of providing a fair and just mechanism for review which relevantly 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.
[3] See Charara v Commissioner of Taxation[2016] FCA 451 per Wigney J at [75] (Charara) where his Honour was referring to s 42A of the Administrative Appeals Tribunal Act 1975 (Cth), the predecessor provision to s 100 of the Tribunal Act.
Sections 49 and 79 of the Tribunal Act give the Tribunal broad discretion in the way it conducts proceedings and permit it by order to give a broad range of directions to ensure it meets those objectives.
The Federal Court has observed that the Tribunal’s discretion to dismiss a proceeding should only be used as a matter of last resort,[4] and in doing so,[5] the Tribunal should consider alternate options and their relative merits before proceeding to dismiss an application because this deprives an applicant of their right to review.
[4] Guse v Comcare [1997] FCA 140; (1997) 49 ALD 288 at 291 (Guse).
[5] See Charara per Wigney J at [79] with reference to Guse.
On 10 July 2025, the Tribunal was presented 3 choices after hearing from the parties. The first was to permit a further adjournment, the second was to allow the clock to run on its self-executing direction which expired in 4 days’ time and the third was to dismiss the proceeding.
Given the history of non-compliance, the Applicant’s complete and abject failure to engage with the Tribunal since 22 April 2025 or more recently and in the absence of cogent evidence to support an adjournment, the first of these options was not supportable. The particular concern arising from the Applicant’s submissions on 10 July 2025 was that any further extension would inevitably be a lengthy one (putting the current hearing dates at risk) and it was difficult to even estimate an appropriate timeframe for compliance. The Applicant did not offer the Tribunal any dates by which he estimated further funds could be obtained or legal representation secured. He also offered no information about his ‘other’ proceedings’ or how or when he might obtain further additional funding to re-engage his lawyers. The Respondent submitted that having heard the Applicant’s submissions, he was very concerned that any adjournment would result in the loss of the current hearing dates without any prospect of resolution of the matter. The Tribunal accepts that as a valid concern and shares it.
In the face of the Applicant’s submissions, the second option of allowing the self-executing directions to run their course, also appeared futile and in practical terms, unfair to the Applicant. The Applicant conceded that while he was currently working on a SFIC with a friend, he had not turned his attention to evidence. He only had 4 days remaining to file his material and was unrepresented. The absence from his submissions of any plan to assemble and file evidence was a particularly important consideration given Applicant bears the onus in these proceedings[6] and could have little chance of successfully challenging the Respondent’s decision without it.
[6] Under s 14ZZK of the Taxation Administration Act 1953 (Cth). Gashi v Commissioner of Taxation (2013) 209 FCR 301; Federal Commissioner of Taxation v Dalco (1990) 168 CLR 614.
As for the SFIC, the best the Applicant could say was he might be able to file by the due date. If he did so but it was deficient and not accompanied by evidence, it again, seemed likely that the current hearing dates would have to be abandoned.
From everything the Applicant said at the 10 July 2025 directions hearing, I had very little confidence he would complete his task by 15 July 2025. I say that mindful of the fact that in the 3 months available to him, the Applicant had not made much progress on his material. He gave no explanation for his failure to progress his material other than the very general assertion that his funding had to be diverted to the other proceedings. As to this, he did not say when or how he became aware of the criminal charges. My strong impression was he did very little in the time made available to him and has only lately turned his mind to his impending deadline with the Tribunal.
Reluctantly, my view given these facts, was that doing nothing at all would not serve to effectively manage the proceeding.
The third option of dismissal was an undesirable one but was a relevant consideration on two fronts. First and as, I have noted, there is a history of non-compliance by the Applicant with directions requiring him to file his material. Second, he has most recently repeated that pattern of behaviour by failing to comply with a direction requiring him to advise the Tribunal whether he had secured legal representation. This non-compliance led to the 10 July 2025 directions hearing. Despite that hearing being listed, the Applicant continued not to respond to the Tribunal. That direction was made in the context of a self-executing direction which would take effect on 15 July 2025 and was made following attempts by the Tribunal to reach out to the Applicant ahead of the deadline.
While, the Applicant attended the directions hearing on 10 July 2025 and made submissions, he did not offer any cogent explanation as to why he did not comply with the most recent direction of the Tribunal. Nor did he explain why he had not previously applied for an extension of time. He did however acknowledge at the directions hearing that the Tribunal has been generous in the past in allowing him opportunities to comply with its directions.
This Tribunal is currently managing more than 107,000 applications.[7] The Applicant has, since mid-2023 been afforded multiple opportunities to progress his application. Tribunal resources have been allocated for two sets of hearing dates (each of 5 days) as well as a date for a conciliation. The Tribunal cannot continue to grant extensions and reserve resources in circumstances where a party has exhibited a pattern of non-compliant conduct and is not progressing their proceeding.
[7] As of 31 May 2025.
The Respondent has engaged solicitors and briefed counsel in the proceedings. He has been put to considerable expense already. He has also been adversely impacted by the delays. I am mindful of his concern should the currently listed dates also be lost, and the proceeding not be heard before the end of the year.
The delays associated with this proceeding have also indirectly and adversely impacted the many other litigants who are seeking to progress their matters to hearing. The Tribunal’s objects require it to consider the competing needs of all parties when determining how to best allocate its resources.
I acknowledge the Applicant suffers from ill health, but had already determined on 22 April 2025, that this fact is a constant and is not the driving factor behind the delay. I am satisfied on the facts of this case that it is the Applicant’s legal representation which is the primary issue driving the non-compliance.
The Applicant has repeatedly failed to comply with Tribunal directions despite reasonable attempts being afforded to him to do so. He made no attempt to proactively engage with the Tribunal or the Respondent during the 3-month adjournment afforded to him and did not respond to or comply with its directions made on 30 June 2025. He has submitted no material in support of his further oral request for adjournment of the proceedings. That request is driven by his need to secure funding and re-engage his legal team. It is an issue which has been live since January 2025 and the Applicant has offered no timeframe in which it could be resolved.

Conclusion

As a consequence of the Applicant’s failure to comply with the Tribunal’s orders and/or to proceed with the application within a reasonable time, these proceedings are dismissed by the Tribunal under s 100 of the Tribunal Act.
If the Applicant wishes to do so, he may apply for reinstatement of these proceedings under section 102 of the Tribunal Act. The Tribunal has drawn his attention to s 102 and it will be for him to decide whether to make that application once he has had an opportunity to review these reasons.

..................................SGD......................................

Senior Member Lye

Date of hearing:	10 July 2025
Date final submissions received:	N/A
Solicitors for the Applicant:	Nil
Solicitors for the Respondent:	McInnes Wilson Lawyers