Queensland X-Ray Group Pty Ltd and Commissioner of Taxation (Practice and procedure)
[2025] ARTA 2259
•9 October 2025
Queensland X-Ray Group Pty Ltd and Commissioner of Taxation (Practice and procedure) [2025] ARTA 2259 (9 October 2025)
Applicant:Queensland X-Ray Group Pty Ltd
Respondent: Commissioner of Taxation
Tribunal Number: 2020/0287, 2020/0288, 2020/0304, 2020/0305
Tribunal:General Member C Willis
Place:Melbourne
Date:9 October 2025
Decision:The Tribunal refuses the application under section 102 for reinstatement of these proceedings.
.........................[SGD]...............................................
General Member C Willis
Catchwords
PRACTICE AND PROCEDURE – Reinstatement application – application for review previously dismissed by Tribunal on basis of failure by Applicant to comply with directions of Tribunal and/or failure to proceed with application within a reasonable time - whether application dismissed in error – factors to be considered – whether appropriate to reinstate - reinstatement application refused
Legislation
Administrative Review Tribunal Act 2024 (Cth), ss 100, 102
Cases
Australian Gold Dealers Pty Ltd and Commissioner of Taxation [2025] ARTA 1133
Re Clinnick and Australian Securities and Investments Commission [2021] AATA 71
Djuric and Commissioner of Taxation [2025] ARTA 469
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
JTBJ and Secretary, Department of Social Services [2025] ARTA 464
KBHN and Commissioner of Taxation [2025] ARTA 970Serpinli v Secretary, Department of Social Services [2019] FCA 2029
Somba and Minister for Home Affairs (Migration) [2020] AATA 425
Statement of Reasons
INTRODUCTION
In January 2020 Queensland X-Ray Group Pty Ltd (the Applicant) filed applications for review of two objection decisions (the Objection Decisions) made by the Commissioner of Taxation (the Respondent).
On 28 July 2025 the Tribunal dismissed the applications under section 100 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) on the basis of the Applicant’s failure to comply with directions of the Tribunal and/or its failure to proceed with its application within a reasonable time.
The Applicant disagrees with this dismissal and is seeking reinstatement of the applications under section 102 of the ART Act.
BACKGROUND
The applications have been the subject of a number of case events, including several directions hearings, which have produced multiple sets of directions intended to progress the applications to a final hearing or other resolution.
Most recently, on 26 March 2025 the Applicant was directed to file evidence and witness statements by 15 May 2025. Those directions also stated:
‘The Tribunal advises the Parties that further extensions of time to those directions are unlikely to be granted, absent there being exceptional circumstances.’
The parties were also directed to file Amended Statements of Facts, Issues and Contentions (or advise that they did not intend to file this document) by 23 June 2025 and provide Hearing Certificates by 26 June 2025.
The Applicant did not file its material by 15 May 2025 as directed, nor did it file an Amended Statement of Facts, Issues and Contentions or a Hearing Certificate.[1] On 15 July 2025 the Applicant’s representative, Mr Michael Webb, wrote to the Tribunal as follows:
‘Our client is not able to attend to this matter within the required timetable. As may be obvious our client does not have the funding available at this time.
Our client needs to instruct Counsel to prepare its Application at least with respect to [Name] and the LPO’s.
We believe that the Applicant and Respondent will be able to resolve any outstanding issues at to the Superannuation Guarantee Levy.
We are instructed that a Hearing after 15th September 2025 is achievable, in that the Applicant anticipates being in funds to finance preparation and any Hearing.
We are requesting the Respondents consent to this adjournment.
We are requested by the Applicant to apologise for the further delay and failure to comply with Orders. Mr White the Director of the Applicant has not been able to provide instructions and has not been able to further instruct Solicitors or engage new Counsel. [Name] is unable to take further instructions. All the above circumstances explain the failure to comply with existing Orders.’
[1] The Respondent filed an Amended Statement of Facts, Issues and Contentions and a Hearing Certificate in accordance with the Tribunal’s directions of 26 March 2025.
An applicant non-compliance directions hearing was listed for 25 July 2025 and the Tribunal asked the Applicant to explain its non-compliance with the previous directions. During this directions hearing material provided by the Applicant dated 21 May 2025 was raised.
After the directions hearing the Respondent provided to the Tribunal (and copied to the Applicant’s representative) an email chain supporting the Respondent’s claim that it had sought to schedule a conference with the Applicant to discuss the 21 May 2025 materials.
Mr Webb sent an email to the Tribunal on 25 July 2025, after the directions hearing. He said that there had not been ‘proper attendance’ by the Respondent over time and said that the Applicant could provide a number of emails indicating that the Respondent had not responded to the Applicant’s request for information. He also said that the Applicant’s representatives had not had sufficient time after receiving a listing notice for the non-compliance directions hearing to review his client’s file to show what compliance had occurred. Mr Webb noted that he had been on leave and the Respondent should have been aware of this. He thought that the Applicant had filed hearing certificates[2] when appropriate but acknowledged that it may not have done so in compliance with the most recent directions.
[2] Mr Webb referred to ‘certificates of readiness’ which the Tribunal assumes refers to hearing certificates.
Mr Webb sent a further email to the Tribunal on 27 July 2025 (not copied to the Respondent) suggesting that the Respondent’s claims about seeking a conference were misleading and that no meeting had been sought specifically about the 21 May 2025 materials. The Applicant wanted certain files of the Respondent reviewed. Mr Webb claimed that the Respondent had contributed to the delays in progression of the Tribunal proceedings and implied that the Respondent had not met its Model Litigant obligations. Mr Webb also said that there were two High Court decisions which were relevant to the Applicant’s case. Therefore the Applicant ‘needs time to properly prepare for a hearing.’
On 28 July 2025 General Member Dunne made a decision dismissing the applications under section 100 (the Dismissal Decision), observing that:
(a)Over five years had passed since the Applicant had filed its proceedings and seven sets of Tribunal directions had not been met.
(b)The Applicant had been warned at a directions hearing in December 2024 about the need to ensure compliance with Tribunal directions and timely progression of its application.
(c)The directions of 26 March 2025 also stated that no further extensions of time would be granted absent ‘exceptional circumstances.’ The directions of 26 March 2025 gave 15 May as the date for the Applicant to meet.
(d)The Tribunal had reviewed materials filed by the Applicant on 21 May 2025[3] to determine whether the Applicant had met any the Tribunal directions but concluded that the Applicant had failed to meet the Tribunal directions.
(e)The Tribunal had regard to the objective set out in section 9 of the ART Act that it must ensure that applications are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permitted.
(f)Case law supported the Tribunal dismissing proceedings in circumstances where there was repeated non-compliance by an applicant.
(g)The Tribunal felt there was sufficient basis to dismiss the applications on the basis that the Applicant had failed to comply with Tribunal orders within a reasonable time and/or failed to proceed with its applications within a reasonable time.
[3] It should be noted that the materials dated 21 May 2025 may have been sent by the Applicant to the Respondent on that date, but were not filed with or otherwise provided to the Tribunal until a later date.
On 26 August 2025 the Applicant wrote to the Tribunal seeking reinstatement of application 2020/0281.[4] The reasons given for the reinstatement are set out in detail below. On 27 August 2025 the Applicant wrote to the Tribunal again with an amended application for reinstatement, noting that there had been errors in the document sent on 26 August 2025.[5] For the purposes of this interlocutory hearing the Tribunal will have regard to the amended document provided on 27 August 2025 (the Reinstatement Application).
[4] Although reference was only made to one of the proceedings, the Tribunal has assumed that the Applicant is seeking reinstatement of each of the proceedings the subject of General Member Dunne’s dismissal decision of 28 July 2025.
[5] Again, the Applicant’s representative did not copy the Respondent on this document.
An interlocutory hearing for the Reinstatement Application was listed for 25 September 2025 at 10 am, before a Member who was not the Member who made the Dismissal Decision. After 10pm on 24 September 2025 both parties filed additional materials with the Tribunal as follows:
(a)The Respondent filed a 3 page outline of submissions (Respondent Submissions) providing a summary of the matters it contended were relevant to the Tribunal’s consideration of the Reinstatement Applicant, together with a copy of various authorities and case related documents it wished to bring to the Tribunal’s attention.
(b)The Respondent also provided a copy of an email sent by Mr Webb to the Tribunal on 25 July 2025 which had attached the materials sent by Mr Webb to the Respondent on 21 May 2025.
(c)The Applicant provided a ‘witness statement’ of Mr Webb (‘Webb Statement’). This document was unsigned and although it recounts the Applicant’s view of certain facts it also outlines various contentions and submissions, criticisms of the dismissal decision and the Applicant’s view of how the matter might proceed going forward.
(d)The Applicant also attached a bundle of documents including copies of email correspondence with the Respondent and historic directions of the Tribunal, as well as providing copies of case authorities on which it relied in support of reinstatement.
These materials therefore did not reach this Member until about an hour prior to the commencement of the interlocutory hearing. In circumstances where a listing notice for this hearing was sent to the parties on 2 September 2025, the Tribunal would expect that the parties provide, or seek leave to provide, materials well in advance of the hearing and not very late the evening prior.
To ensure that this Member had regard to all relevant material before making her decision on the Reinstatement Application, she did not provide a decision to the parties on the day of the interlocutory hearing but reserved her decision until she had had the opportunity to read carefully the materials filed on 24 September 2025.
The interlocutory hearing was held by video (Microsoft Teams) and at the beginning of the hearing the Member and the Respondent’s counsel noticed that an unidentified participant ‘read.ai.notes’ had joined the hearing. This is not a tool or service of the Tribunal. Each of the counsel for the Respondent and Applicant stated that they were unaware of where this participant had come from. The Tribunal’s hearing attendant removed this participant from the hearing. Parties are reminded that the Tribunal’s own official recording processes are the only recording permitted of Tribunal hearings. Artificial intelligence assistants or tools should not be used at Tribunal case events.
THE APPLICANT’S REASONS FOR SEEKING REINSTATEMENT
From the content of the Reinstatement Application, the Webb Statement and the submissions made by the Applicant’s counsel at the hearing, the Tribunal understands that the Applicant believes that the Tribunal should grant the Reinstatement Application for the following reasons:
(a)The applications were dismissed in error and the Tribunal should reinstate the applications on this basis under subsections 102(5) and (6) of the ART Act.
(b)Further, it was otherwise appropriate for the Tribunal to reinstate the applications under subsections 102(7) and (9).
(c)The reference by General Member Dunne to five years having elapsed since the filing of the original applications was not accurate. The five year period since the filing of the original applications included two years of COVID-19 related lockdowns in Victoria. The Applicant’s director (Mr White) moved from Victoria to Queensland during this time due to his wife’s illness and therefore could not attend meetings with his solicitors or the Respondent. The relevant records were in hard copy form in Victoria, restricting access. COVID-19 restrictions also caused a downturn in business and cashflow affecting the conduct of the proceeding.
(d)General Member Dunne was also wrong in saying that the Applicant had met none of the directions set out in paragraph 3 of her dismissal decision. The directions were either met by the Applicant, the Respondent had agreed to variations of those directions or the Respondent had neither opposed nor agreed to variations of those directions. The Applicant was continually in contact with the Respondent’s representatives. The Member’s ‘lack of knowledge lead to a false impression of the Applicant’ which should be corrected.[6]
(e)The Applicant’s representative believed that it had ‘attended to’ all directions hearings on behalf of the Applicant, on the basis that Tribunal orders referred to its ‘attendance.’ The Applicant’s representative acknowledged that the Applicant ‘had not filed its evidence as ordered and perhaps some Hearing Certificate.’ Because the Tribunal’s dismissal decision of 28 July 2025 did not specify the particular order, they could not respond specifically.[7]
(f)Except for the direction dated 26 March 2025 the Applicant had complied with orders, ‘although late.’[8]
(g)Nevertheless, in relation to the directions of the Tribunal dated 26 March 2025 the Applicant’s representative said that although the Applicant had not complied with the directions of that date,[9] it had ‘sent responses to the decisions relevant to the Superannuation Guarantee Charge 21st May 2025 (attached), with no adequate response from the Respondent.’ The detailed information provided by the Applicant had not been addressed by the Respondent. Mr Webb said ‘This objection decision must support the reinstatement, the information was provided but not addressed by the Respondent prior to the decision of the 28th July 2025.’ It was the intention of the Applicant and Respondent that the parties reach an agreement on one issue (relating to Superannuation Guarantee Charge) before the Tribunal heard the matter and that ‘given time’ the parties would resolve this issue. The Applicant did not want to take this issue to the Tribunal due to time and expense considerations.
(h)The Applicant referred to wind up proceedings which had been instituted by the Respondent and subsequently settled. The Applicant said that matters relating to the application of Late Payment Offsets that were accepted by the Respondent at that time had now been disputed by the Respondent for the purposes of the Tribunal proceeding. Attached to the Webb Statement was a copy of email correspondence from 2019 in this regard. Mr Webb also said that there were five boxes of archive documents relating to this issue.[10]
(i)Mr Webb said that there were (unnamed) two recent High Court decisions of relevance to the Applicant’s case which would need to be considered by the Applicant’s counsel and which would affect the content of witness statements that might be filed by the Applicant in accordance with the 26 March 2025 directions. He claimed that the Respondent’s representative ‘brushed aside’ those cases as not relevant.[11]
(j)General Member Dunne had not had regard to the full history of the matter, in particular the contribution of the Respondent to the delay in progressing the applications and ‘the fact that the matter was nearing completion.’ The Member was not aware of the various orders and directions. The Applicant said that its conduct was not the sole reason for delay in the proceedings. For example, during 2022 the Respondent had refused to provide the Applicant with updated figures as amendments were made to certain amounts payable, saying that it would provide adjusted figures ‘at the end.’ For that reason the Applicant did not have the necessary information ‘to make other decisions.’[12]
(k)The Respondent had made ‘an offer’ on 23 July 2025 and the Applicant had not had time to consider that offer before the non-compliance directions hearing on 25 July 2025.
(l)The Applicant’s position was that the matter was now ready to be set down for hearing after 10 October 2025 (or potentially after Mr Webb returned from leave on 11 October 2025).
[6] Paragraphs 7, 13 of Webb Statement.
[7] See Reinstatement Application, noting that the pages of this document are not numbered.
[8] Paragraphs 21, 23 of Webb Statement.
[9] Paragraph 23 of Webb Statement.
[10] Paragraph 4 of Webb Statement and attachments thereto.
[11] See Reinstatement Application document.
[12] Paragraph 3 of the Webb Statement.
The Applicant has also expressed concerns about the manner in which the Respondent has engaged with the Applicant before and after the applications for review were made to the Tribunal. The Tribunal will only have regard to these concerns to the extent that they may be relevant to the circumstances giving rise to the dismissal of the applications and the reinstatement applications.
RESPONDENT’S POSITION ON REINSTATEMENT
From the content of the Respondent Submissions and the submissions made by the Respondent’s counsel at the hearing, the Tribunal understands that the Respondent believes that the Tribunal should not grant the Reinstatement Application for the following reasons:
(a)None of the issues raised by the proceedings that were dismissed had sufficient merit to justify reinstatement. The Respondent set out an overview of its reasons why it believed that an employment relationship existed between a particular individual and the Applicant, that the Applicant had not provided sufficient evidence to demonstrate correct superannuation contributions being made to other individuals and that late payment offsets could not be varied or revoked after being made.
(b)The reasons given by the Applicant in the Reinstatement Application were general and did not specifically explain the non-compliance with the directions of 26 March 2025. The reasons given in the Reinstatement Application did not provide a basis for confidence that the applications would progress if they were to be reinstated.
(c)While the Respondent acknowledged that ‘in a strict sense’ the Respondent does not suffer prejudice from delay in proceedings where the onus is on the Applicant to prove its case, from a resource perspective the Respondent noted that these proceedings were utilising a number of its officers and counsel had been engaged. There was a question as to whether the Applicant would be able to provide material of sufficient quality to discharge its onus. Reinstatement would not be a fair outcome for the Respondent and would not meet paragraph 9(a) of the Tribunal’s objective (which refers to a mechanism of review that is ‘fair and just’).
(d)The Respondent also referred to potential prejudice to the Tribunal of reinstatement of the proceedings in circumstances where the Tribunal’s resources were limited.[13]
[13] The Respondent referred to comments made by Kyrou J, in his capacity as President of the Tribunal, in December 2024 when refusing an application for referral to the Guidance and Appeals Panel.
SHOULD THE APPLICATIONS BE REINSTATED?
Section 102 applies if the Tribunal dismisses an application: subsection 102(1).
Under section 102 the Tribunal may reinstate an application on its own initiative. Alternatively:
‘Party may apply for reinstatement if application dismissed in error
(5) A party to the proceeding in relation to the application may apply to the Tribunal for reinstatement of the application on the grounds of error within 28 days after the party receives notice that the application is dismissed (or such longer period as the Tribunal, in special circumstances, allows).
(6) If a party applies under subsection (5) and the Tribunal considers that the application was dismissed in error, the Tribunal may reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.
Parties can apply for reinstatement in other specified circumstances
(7) If the application is dismissed under:
…
(c) section 100 (Tribunal may dismiss application if applicant fails to comply with order etc.);
a party to the proceeding in relation to the application may apply to the Tribunal for reinstatement of the application within 28 days after the party receives notice that the application is dismissed (or such longer period as the Tribunal, in special circumstances, allows).
…
(9) If a party applies under subsection (7) and the Tribunal considers it appropriate to reinstate the application, the Tribunal may reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.’
The Tribunal was not initially clear from the Reinstatement Application whether the Applicant was contending that their applications had been dismissed in error, such that subsections 102(5) and 102(6) of the ART Act are enlivened, or whether the Applicant was contending that it was otherwise ‘appropriate’ to reinstate the applications such that subsections 102(7) and 102(9) of the ART Act were relevant. Counsel for the Applicant confirmed to the Tribunal that both bases were put by the Applicant.
The Tribunal may reinstate an application under subsection 102(6) where it considers that the application was dismissed in error. Case authorities considering this provision and predecessor provisions to section 102[14] set out the following principles:
(a)A causal relationship between the error and the dismissal of the application must be established, and the error must be a material factor in the dismissal. An error that is of ‘peripheral or contextual significance’ may not be sufficient unless the Tribunal is satisfied that it induced the dismissal.[15]
(b)An error may arise from the actions of an entity other than the Tribunal, a Tribunal Member or Tribunal employee. The error might arise from a mistake on the part of the representative of one of the parties. Where that mistake induced the dismissal, it can be said that the application was dismissed in error.[16]
(c)The term ‘error’ should not be construed so widely as to confer what would amount to or in substance be a right to an additional review on the merits.[17]
[14] See section 42A of the former Administrative Review Tribunal Act 1975 (Cth).
[15] Gregory v Comcare (Compensation) [2023] AATA 4880.
[16] Goldie v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 367 at [29].
[17] JTBJ and Secretary, Department of Social Services (Social Security) [2025] ARTA 464 per President Kyrou J at [47].
Where it is not claimed that an application was dismissed in error, there may be circumstances such that it is otherwise appropriate to reinstate the application. In Serpinli v Secretary, Department of Social Services (Serpinli) O’Callaghan J said:[18]
In considering whether to reinstate an application, the Tribunal can have regard to a range of factors in determining whether it is “appropriate” to reinstate an application. These factors may vary from case to case, but include a consideration of the merits of the substantive application, and in circumstances where the application was dismissed for a failure to appear at the hearing, the explanation for it.
[18]Serpinli v Secretary, Department of Social Services [2019] FCA 2029 at [26].
The ‘range of factors’ to be considered may include some of the considerations identified as relevant to applications for an extension of time: see for example Somba and Minister for Home Affairs (Migration) (Somba),[19] Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (Hunter Valley).[20] Considerations drawn from courts and other tribunals should be treated as a ‘general guide’ and regard must be had to whether the context and purpose are comparable.[21] Most recently, two decisions of this Tribunal have discussed the various case authorities in the specific context of section 102 of the ART Act: see Djuric and Commissioner of Taxation (Djuric)[22] and KBHN and Commissioner of Taxation (KBHN).[23]
[19]Somba and Minister of Home Affairs [2020] AATA 425.
[20]Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344.
[21] Somba at [27] to [29], in particular discussing the factors described in Hunter Valley.
[22] Djuric and Commissioner of Taxation [2025] ARTA 469 at [12].
[23] KBHN and Commissioner of Taxation [2025] ARTA 970 at [60] to [61].
Was the application dismissed in error?
The Applicant’s contentions addressed purported errors in the Dismissal Decision relating to both non-compliance with Tribunal orders or directions and failure to proceed with the applications.
The Reinstatement Application and Webb Statement contain express acknowledgements by the Applicant’s representative that their client had not complied with the Tribunal’s directions of 26 March 2025.[24] The Applicant has therefore conceded that the key element of paragraph 100(b) of the ART Act has been satisfied. In circumstances where the applications were dismissed on the basis of non-compliance with the directions of 26 March 2025, there was clearly no error on the part of the Member who made the Dismissal Decision in this regard.
[24] Paragraphs 8, 21 and 23 of the Webb Statement. See also the second page of the Reinstatement Application where it says ‘Our client has not filed its evidence as ordered and perhaps some Hearing Certificate.’
This Tribunal cannot see why the Applicant would suggest that the reasons for the Dismissal Decision ‘has not specified the particular Order, meaning that we cannot respond to specifically.’ Paragraph 4 of the Dismissal Decision identifies the 26 March 2025 direction and the 15 May 2025 date for compliance by the Applicant. Paragraph 9 of the Dismissal Decision refers again to the 26 March 2025 directions and explains why General Member Dunne did not believe that the Applicant’s materials dated 21 May 2025 represented compliance with those directions.
This Member also does not believe that the provision to the Tribunal of the Applicant’s materials dated 21 May 2025 represents compliance, even in part, with the directions of 26 March 2025. These materials were not sent by the Applicant to the Respondent until 21 May 2025, some days after the 15 May 2025 date for compliance with the directions. They were not provided to the Tribunal until some time after that. In any event, as noted above the Applicant has acknowledged its non-compliance with the directions of 26 March 2025.
The Applicant provided an analysis of its compliance with further directions of the Tribunal across 2023 and 2024, as identified in paragraph 3 of the Dismissal Decision. The Applicant’s representative stated that Tribunal orders referred to ‘attendance’ and that they had attended all directions hearings.[25] This Member has reviewed these earlier directions. The directions do not simply require ‘attendance’ but clearly state key tasks to be undertaken by each party on particular dates. The Applicant is correct to note that some of these earlier directions were vacated or varied. In some instances this was following a request by the Applicant for an extension of time where the Applicant had indicated it would have difficulty complying. The Tribunal agrees that this of itself does not constitute non-compliance, however the circumstances were different with the directions of 26 March 2025. The Applicant did not approach the Tribunal for any extension of time or variation, hence the listing of the non-compliance directions hearing which led to the Dismissal Decision.
[25] See second page of Reinstatement Application. Section 99 of the ART Act provides an alternative basis for dismissal of an application where the applicant fails to appear at a Tribunal case event. This was not the basis for the dismissal of the applications in this proceeding, and the Dismissal Decision did not reference section 99 or non-attendance at case events.
In relation to a failure to proceed with its applications, the Applicant’s counsel identified the Tribunal’s failure to acknowledge the Respondent’s part in delays, including the Respondent’s lack of response to the Applicant’s request for calculations, as representing an error in the Dismissal Decision. The Reinstatement Application said that the Tribunal should have had regard to the full history of the matter, the contribution of the Respondent to delays in progressing the applications and the ‘fact’ that the matter was nearing completion.[26] The Applicant said that once the parties had resolved ‘the final calculations’ then ‘the depth of Witness Statement and Hearing Certificates would be known and filed.’[27] The Applicant suggested that the correct approach for the Tribunal would have been to adjourn the applications and allow the Applicant an extension of time rather than dismiss the applications.
[26] See third page of Reinstatement Application.
[27] Paragraph 16 of the Webb Statement.
The Tribunal had not directed the Respondent to provide calculations or similar material to the Applicant. The Applicant’s obligation to proceed with its applications under the ART Act is not conditional upon the Respondent complying with the Applicant’s requests or preferences. The Tribunal does not believe that this demonstrates inappropriate ‘delay’ on the part of the Respondent. The Applicant’s representative stated that he went on leave around this time and thought that one of his staff had attended a meeting with the Respondent, but this had not occurred. If the Applicant believed that there was material that the Respondent might provide which was relevant to the review by the Tribunal then the Applicant could have approached the Tribunal for directions for the Respondent to do so, or at least to seek a variation of the directions of 26 March 2025 to allow the parties to engage directly in relation to this material. It is the responsibility of the Applicant and/or its representatives to ensure that these matters are attended to.
Further, this Tribunal does not agree that it was a ‘fact’ that the proceedings were ‘nearing completion.’ No evidence was provided by the Applicant in support of its assertion and the Respondent clearly did not agree with the assertion.
This Tribunal does not believe these matters reflect or gave rise to any error in the Dismissal Decision. To the extent that the Applicant’s representative thought that a colleague had participated in a meeting with the Respondent while he was on leave, the Tribunal does not believe that this was a mistake that induced the Dismissal Decision as the 21 May 2025 materials were provided to the Respondent after the due date for compliance with the 26 March 2025 directions, and direct engagement between the parties was separate to the terms of those directions.
The Applicant referred to an ‘error of law’ in the Dismissal Decision because the Member conducting the non-compliance directions hearing supposedly admitted that she did not have the ‘information essential to her to make her decision’ by reference to footnote 4 of the Dismissal Decision. Footnote 4 of the Dismissal Decision refers to the Tribunal not actioning matters in relation to case management of the applications in a timely manner during a period from late 2023 to late 2024. This was not a criticism of either party but an acknowledgement that the absence of filings by either party during that time might be attributable to the Tribunal’s systems. It is noted that in response to correspondence from the Tribunal in November 2024, Mr Webb wrote to the Tribunal seeking an adjournment of the Tribunal proceedings on the basis that the Applicant’s director had been occupied with other litigation in a different forum and had limited time to devote to preparation for a hearing in the Tribunal proceedings. The Respondent agreed to this adjournment. This led to the directions made in December 2024 and the directions hearing in March 2025. This Tribunal cannot see how footnote 4 demonstrates the Tribunal lacking information essential to the Dismissal Decision. It does not represent an error of law.
The Applicant also took issue with a reference made in the Dismissal Decision to five years having elapsed since the original applications were filed. This reference was not incorrect. The original applications were filed in January 2020. The applications were dismissed in July 2025. Challenges that arose due to COVID-19 travel restrictions may be relevant as an explanation for why certain activities were not progressed during the period of pandemic restrictions, and are considered further below. The reference to five years having elapsed was not inaccurate.
The Applicant did not comply with the directions of 26 March 2025. Further, there were factual matters which gave rise to a reasonable concern by the Tribunal that the Applicant had not proceeded with its applications within a reasonable time. The Tribunal does not find any error in the Dismissal Decision which had a causal relationship to the dismissal. This Tribunal finds that the applications were not dismissed in error and therefore it cannot reinstate the applications under subsection 102(6) of the ART Act.
Reinstatement in other specified circumstances
Even where the Tribunal does not consider that the applications were dismissed in error, it is still open to the Tribunal to reinstate if it considers it ‘appropriate’ to do so. The Tribunal sets out below the matter it has taken into account in considering whether it is appropriate to grant the Reinstatement Application under subsection 102(9). The Tribunal has considered these matters in the context of the non-compliance with the directions of 26 March 2025 and the failure to proceed with the applications within a reasonable time.
Explanation for non-compliance and failure to proceed
The Tribunal observes that the explanations provided in the Reinstatement Application and those in the Webb Statement were not entirely consistent and were difficult to follow in some instances due to matters of expression. The Tribunal acknowledges the assistance of the Applicant’s counsel in seeking further instructions during the hearing to try to clarify some of these matters.
In its Reinstatement Applicant the Applicant suggested that it was not clear which specific orders the Tribunal said it had not complied with. As noted above, the Tribunal believes that paragraphs 4 and 9 of the Dismissal Decision expressly identify the directions of 26 March 2025 and the requirement for the Applicant to file by 15 May 2025 if this was not already clear from the wider discussion in the reasons. General Member Dunne also refers to having reserved her dismissal decision so that she could review the material provided by the Applicant on 21 May 2025 to determine whether that met any of those directions, albeit belatedly. This Tribunal believes that the Applicant’s non-compliance with these directions, the most recent made by the Tribunal, was very clearly articulated and addressed. The Tribunal also repeats its previous observation that the Applicant has acknowledged that it did not comply with the 26 March 2025 directions.
Also as set out above, the Tribunal does not accept the Applicant’s suggestion that their ‘attendance’ at or in relation to Tribunal directions and case events is sufficient compliance. A party must comply with the content of directions, by the date specified by the Tribunal for compliance. If it believes it will be unable to do so, it should seek further directions or guidance from the Tribunal.
In relation to the issue of the Applicant failing to proceed with their applications within a reasonable time, the Dismissal Decision also identified various earlier directions and case events which gave rise to the Tribunal’s concerns about the progression of the matter, including concerns raised at a previous case event in December 2024. Even where extensions of time or variations to directions had been granted, the overall timeline of the applications is relevant. The Respondent noted that the Objection Decisions the subject of these proceedings were made in 2016 and 2018. The Applicant itself submitted that the Tribunal should have regard to the full history of the matter. This Tribunal does not accept that there was a lack of clarity as to why the Tribunal had a concern about failure to progress the application, at least in relation to the more recent history of the matter.
In relation to the claims made about engagement with the Respondent over the materials provided by the Applicant on 21 May 2025, the Tribunal again notes that this material was provided after the date by which the Applicant was required to comply with the 26 March 2025 directions for filing of further evidence and witness statements. The first apparent communication with the Tribunal after the 26 March 2025 directions was the Applicant’s email of 15 July 2025[28] where Mr Webb advised that the Applicant was not going to be able to comply with the Tribunal’s directions, some two months after the date for compliance. Mr Webb’s explanation that he was on leave around this time and thought that one of his staff or colleagues was attending to the Applicant’s matters with the Respondent is not adequate.
[28] Mr Webb referred to a telephone call he made to the Tribunal on 11 July 2025. Advice of non-compliance from a party should be made in writing. In any event, his telephone call was several weeks after the date for compliance by the Applicant.
The Applicant appeared to be of the view that the Applicant’s compliance with the Tribunal’s directions of 26 March 2025 was somehow conditional upon the Respondent addressing further information provided by the Applicant to the Respondent. The Tribunal is generally supportive of parties engaging in direct discussions outside the formal Tribunal processes in an effort to resolve or at least narrow issues in dispute in a Tribunal proceeding. However direct engagement between the parties is separate to, and does not replace, compliance with Tribunal directions and the requirement for an applicant to progress its matter. The Tribunal repeats its observations that if the Applicant believed there was documentation or other information relevant to the Tribunal’s review that should be provided by the Respondent, the Applicant should have approached the Tribunal for directions or guidance accordingly.
In the Reinstatement Applicant the Applicant raised COVID-19 related concerns.[29] In relation to this time period, the Tribunal notes that:
(a)The Applicant was granted an extension of time to file its original applications in January 2020,[30] pursuant to orders of Deputy President Constance dated 5 March 2020.
(b)No directions were apparently made by the Tribunal between May 2020[31] and July 2021. Dates for filing of materials were extended in late 2021.[32]
(c)Following a Tribunal led conference in June 2022, the matter was referred for a Neutral Evaluation process. The dates directed by the Tribunal in December 2022 for the filing of material by the parties for this process were extended in February 2023 and March 2023.
[29] It was not clear to the Tribunal whether COVID-19 related issues had been raised by the Applicant prior to the Reinstatement Application. No evidence was provided of the medical issues raised in relation to the Applicant’s director’s wife.
[30] The Objection Decisions were dated 2016 and 2018, such that by January 2020 they were significantly out of time.
[31] The Tribunal made a direction for the Applicant to confirm the objection decisions in relation to which it was seeking Tribunal review.
[32] It is noted that dates for filing by both parties were extended.
The Tribunal is unclear as to why the Applicant and/or Mr White could not confer with its solicitors via telephone or audio visual means during any period of travel restrictions. Even under non-pandemic conditions it is quite normal for clients to confer with their legal representatives via telephone or audio visual means.
The Tribunal does not believe that COVID-19 related restrictions in Victoria across 2020, 2021 and 2022 provide a sufficient explanation for the Applicant’s failure to progress its applications. The history of these applications before the Tribunal indicate that in addition to a period across 2020 to 2021 when no directions for filing of materials were made by the Tribunal, the Tribunal subsequently agreed to multiple extensions of time for both parties to comply with directions or variations of directions, including for the filing of material. The Tribunal does not believe there is any link between COVID-19 restrictions and the failure to comply with the 26 March 2025 directions, which were made well after the end of COVID-19 related movement restrictions.
Similarly, the Applicant’s claims of a business downturn and cashflow issues following the COVID-19 restrictions were made at a high level, and without any supporting evidence. It was not clear whether these claims were alternative or in addition to the other explanations provided by the Applicant.
The Tribunal does not believe the Applicant has provided an adequate explanation for either its failure to comply with the directions of 26 March 2025 or for its apparent failure to proceed with its application within a reasonable time. The Applicant sought to counter its concession that it had not complied with those directions by seeking to place blame on the Respondent for unspecified ‘delays’ apparently arising from the Respondent not agreeing to particular demands made by the Applicant outside the Tribunal process. This was also offered as an explanation for the Applicant not contacting the Tribunal to seek an extension or variation of directions (in addition to the Applicant’s representative being on leave).
These matters weight heavily against the reinstatement of the applications.
Merits of the substantive application
In the Reinstatement Application the Applicant said that there were two recent High Court cases of relevance to the Applicant’s case, which required consideration by the Applicant’s counsel and which would affect the content of the witness statements provided in support of the Applicant’s case. Those High Court decisions were not identified nor was there an explanation of the particular basis upon which they were relevant to the Applicant’s case or the evidence of the witnesses it intended to call. At the hearing the Applicant’s counsel suggested that the Applicant’s case had strong merits or prospects of success, and was at the very least ‘not manifestly hopeless.’
In its Respondent Submissions the Respondent set out the various bases upon which it believed that the Applicant’s case lacked sufficient merit to justify reinstatement.
The role of this reinstatement hearing is not to conduct a full hearing of the substantive matters, and an assessment of merits in this context is of necessity ‘superficial’.[33] The Tribunal agrees with the Applicant’s counsel that on such an assessment the Applicant’s case cannot be described as ‘hopeless’ or lacking in any prospects of success.
[33] See Clinnick at [26], Djuric at [13(b)].
This matter tends slightly in favour of granting reinstatement.
Prejudice to the parties
The Respondent acknowledged that any potential prejudice to it arising from a delay in proceedings, should the applications be reinstated, is mitigated by the onus being on the Applicant to prove its case. The Applicant’s counsel referred to this acknowledgement in contending that the Respondent would not suffer any prejudice should the applications be reinstated.
If the applications are not reinstated the Applicant would lose its opportunity to have a review of the Objection Decisions. The Applicant’s counsel also stated that the Applicant does not owe outstanding amounts of tax or superannuation but is seeking a refund.[34] It may therefore lose its opportunity to obtain the refund amount.
[34] See references to garnisheed amounts and BAS credits in paragraph 5 of Webb Statement.
On the matter of prejudice to the parties, on balance there is a greater likelihood of prejudice to the Applicant should the applications not be reinstated. This tends to weigh in favour of reinstatement.
Fairness and public interest considerations
The Applicant suggested that the Dismissal Decision was not fair because the Member who made that decision did not have the ‘full information’ about the prior directions set out in paragraph 3 of the Dismissal Decision and the matters at footnote 4 of the decision. The Applicant believes that a failure to reinstate the applications would be unfair.
The Tribunal has had regard to the Applicant’s analysis of its compliance with the prior Tribunal directions and is not satisfied that this demonstrates the Applicant’s progression of its applications. It does not address the acknowledged non-compliance with the 26 March 2025 directions. The Tribunal has already explained that footnote 4 of the Dismissal Decision refers to the Tribunal not actioning matters in relation to case management of the applications in a timely manner during a period from late 2023 to late 2024, which is not a criticism of either party. An adjournment of the previously scheduled hearing was granted. This does not demonstrate any unfairness in the Dismissal Decision or that unfairness would arise if the applications are not reinstated.
Nevertheless, the Tribunal is mindful of its objective in providing a mechanism of review that ensures that applications are resolved quickly and with as little expense as is appropriate: paragraph 9(b) of the ART Act. The Tribunal is also required to provide a mechanism of review that is ‘fair and just’ and which ‘promotes public trust and confidence in the Tribunal’: paragraphs 9(a) and (e). It would not be consistent with these objectives for the Tribunal to tolerate the failure of a party to comply with Tribunal orders or directions without adequate explanation or reason.
This factor tends against reinstatement.
Any other matters
The Respondent raised the issue of prejudice to the Tribunal should the applications be reinstated, in the context of the proper use of the Tribunal’s resources.
The Applicant said that in circumstances where the Tribunal had the power under subsection 102(9) to reinstate an application ‘and make such orders as appear to the Tribunal to be appropriate in the circumstances’ it would be open to the Tribunal to reinstate the applications, giving the Applicant a brief period to comply with the directions of 26 March 2025 and if the Applicant did not do so within that time, then the Tribunal could dismiss the applications (again).[35] The Applicant referred to a recent Tribunal decision in KBHN and Commissioner of Taxation[36] as an example of the Tribunal agreeing to reinstate a proceeding with conditions in the form of directions being given to ensure that certain timetabling dates were met and a final hearing date was adhered to.
[35] Mr Webb said that this was what the Applicant had requested previously, instead of dismissal: see Webb Statement at [12] and [14].
[36] KBHN and Commissioner of Taxation [2025] ARTA 970.
The Tribunal does not believe that it would be appropriate to reinstate the present applications in circumstances where it may have to dismiss them again within a brief time. This is not an efficient use of the Tribunal’s resources, or those of the Respondent.[37] It is not aligned with the objective of the Tribunal as set out in paragraph 9(b) of the ART Act, which requires the Tribunal to ensure that applications are resolved as quickly and with as little expense as a proper consideration of the matters before the Tribunal permits.
[37] The Respondent outlined the resources it has applied and would need to apply in ongoing proceedings with the Applicant, in the context of the numerous dispute resolution processes it is currently managing in relation to taxpayers other than the Applicant: paragraph 10 of the Respondent’s submissions. See also NYKS and Commissioner of Taxation [2025] 2025 ARTA 1874 at [38] where the Tribunal identified prejudice to the administration of justice in terms of the expenditure of further public money upon delays to proceedings.
The Tribunal believes there are a number of points of distinction between the circumstances of the Applicant and those of the applicant in KBHN. In KBHN the dismissal arose in the context of ‘guillotine orders’ where the applicant’s representative, who was not a legal practitioner, failed to meet a filing deadline by a matter of two hours. The Tribunal in that case accepted that the applicant’s representative did make genuine efforts to comply. Senior Member Lye said that her decision might have been different had the material not been filed.[38] In the present circumstances the Applicant was afforded a non-compliance hearing before a Member who reserved her dismissal decision to consider matters raised during that hearing including some further materials provided by the Applicant well after the due date for compliance with the 26 March 2025 directions.[39] The Dismissal Decision was made after review and consideration of this material.
[38] KBHN at [107] and [112] to [113].
[39] It is again noted that these materials were initially only provided to the Respondent, and even then after the due date for compliance with the directions. They were not provided to the Tribunal until a later date.
The Applicant also stated that it believed that the matter was ready to be set down for hearing after 10 October 2025.[40] It was then noted that Mr Webb was on leave until 11 October so matters might progress on or after 12 October. This Member pointed out that even if the Applicant were ready to proceed after mid-October there would still be further timetabling directions to be made in preparation for a (relisted) final hearing and that listings of hearings were subject to the availability of Tribunal resources. Any suggestion that the applications could be finalised in the short term was therefore not realistic.
[40] Paragraph 24 of Webb Statement.
The morning of the interlocutory hearing the Applicant sent to the Tribunal copies of three case authorities on which it intended to rely, being the KBHN and Djuric decisions and Australian Gold Dealers Pty Ltd and Commissioner of Taxation (Australian Gold Dealers).[41] KBHN has been discussed above.
[41] Australian Gold Dealers Pty Ltd and Commissioner of Taxation [2025] ARTA 1133.
In the Djuric matter there were issues relating to the applicant’s representative filing materials that did not comply with the Tribunal’s practice directions, amongst other concerns. The Tribunal said that applicant’s assurance that it would engage a tax barrister to assist it was a relevant factor for the Tribunal. The Applicant in the present matter has had legal representation during the proceedings, including at the time of the events giving rise to the Dismissal Decision.
The Australian Gold Dealers decision also involved a guillotine order, the Tribunal was provided with information explaining the personal circumstances of the applicant’s representative which led to the late filing of the applicant’s materials[42] and the Respondent did not oppose reinstatement. The Tribunal does not believe that the Australian Gold Dealers decision is of assistance to the Applicant in the present matter.
[42] Applicant’s Statement of Facts, Issues and Contentions was filed some hours late and the balance of materials some days afterwards.
CONCLUSION
Having regard to the matters above, this Tribunal does not consider that the applications were dismissed in error or that it is appropriate for the applications to be reinstated. Although the Tribunal has identified some matters that might tend in favour of reinstatement, they are outweighed by the lack of adequate explanation by the Applicant for its non-compliance and issues of the public interest.
The Tribunal therefore refuses to grant the Reinstatement Application, and it is not necessary for the Tribunal to consider whether any other orders are appropriate in the circumstances.
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