QX05/8 and Tax Agents' Board of Queensland
[2006] AATA 774
•8 September 2006
Administrative
Appeals
Tribunal
ORDER AND REASONS FOR ORDER [2006] AATA 774
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/677
GENERAL ADMINISTRATIVE DIVISION ) Re QX05/8 Applicant
And
TAX AGENTS’ BOARD OF QUEENSLAND
Respondent
ORDER
Tribunal Senior Member B J McCabe Date8 September 2006
PlaceBrisbane
WHEREAS the Tribunal ordered on 13 December 2005 that the reviewable decision be stayed pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975
THE TRIBUNAL ORDERS THAT the stay order be revoked pursuant to s 41(3) of the Administrative Appeals Tribunal Act 1975 so that the reviewable decision takes effect as of 29 September 2006.
................[Sgd].......................
SENIOR MEMBER
CATCHWORDS
PRACTICE AND PROCEDURE – dismissal power – stay power – lifting of previous stay – serious delays in prosecuting applicant’s case – public interest – stay lifted
Administrative Appeals Tribunal Act 1975 s 37, 41, 42A
Dahlia Mining Co Ltd v Collector of Customs, Federal Court, 20 December 1991, 833/1991
Dekanic and Tax Agents Board of NSW (1982) 6 ALD 240
Guse v Comcare (1997) 49 ALD 288
REASONS FOR ORDER
9 September 2006 Senior Member B J McCabe
introduction
1. The respondent has asked the Tribunal to exercise its power under s 42A(5) of the Administrative Appeals Tribunal Act 1975 (the Act) to dismiss Mr QX05/8’s application for review. The respondent says the applicant has failed to comply with directions and progress his case within a reasonable time. In the alternative, the respondent has asked the Tribunal to lift the stay that was imposed pursuant to s 41(2) of the Act so that the reviewable decision takes effect immediately.
2. I have decided not to dismiss the application although I am satisfied the stay order should be dissolved so that the reviewable decision takes effect. I explain my reasons below.
the factual background
3. Mr QX05/8 is a registered tax agent. On 29 September 2005, the Tax Agents’ Board of Queensland (the Board) advised Mr QX05/8 in writing that it was not satisfied he was a fit and proper person to prepare income tax returns. The Board declined to renew his registration pursuant to s 251JC(1)(a)(i) of the Income Tax Assessment Act 1936. The decision was made after the Board concluded the applicant had not provided an adequate response to allegations contained in a “show cause” notice that had been issued earlier.
4. The applicant asked the Tribunal to review the decision. The application for review was filed on 26 October 2005. On the same day, the applicant asked the Tribunal to exercise its powers under s 41(2) of the Act to stay the decision under review. Mr QX05/8 filed written submissions and made oral submissions at a telephone hearing before Ms Carstairs, a member of the Tribunal. The applicant referred to the hardship that he and his clients would suffer if the stay order was made. I understand he also referred to the likelihood that his business would be so severely damaged the Tribunal’s review might end up being pointless. Ms Carstairs acceded to the applicant’s request and the stay order was made on 10 November 2005. The effect of the stay was to permit the applicant to continue practising as a registered tax agent until the matter was heard and finally determined.
5. The Board has filed the documents required under s 37 of the Act. It has also filed a set of supplementary T documents which contain information about complaints received in relation to the applicant after the reviewable decision and the decision in relation to the stay were made.
6. The Board says the applicant is dragging his feet in completing the interlocutory steps required before the matter can be brought on for a final hearing. There have been a number of directions hearings and the Board says the applicant has failed to comply with the Tribunal’s directions in a timely way. Ms Bishop, a solicitor in the employ of the Australian Government Solicitor (the lawyers for the respondent) set out the history of the matter in her statement dated 15 August 2006. Ms Bishop referred in particular to the delays and to the shortcomings in the applicant’s compliance with directions.
7. Ms Bishop noted the applicant’s claim that a number of letters sent to him have gone astray in the mail. She also reported on problems in effecting service of documents. She noted the applicant pleaded that difficulties in his personal life and workload had prevented him from complying with directions. She gave several examples of delay in filing documents.
8. She also noted she had told the applicant at the last telephone directions hearing that the respondent would make an application to dismiss the proceedings if the applicant failed to file a statement that addressed certain issues within the time indicated in the directions that were being discussed. Mr QX05/8 was also told that an application to lift the stay might also be made. I note the statement was filed on time, but it is plainly inadequate.
9. I accept Ms Bishop’s statement accurately records the history of the proceedings. The statement was filed in support of the Board’s application to dismiss the proceedings and lift the stay order. That application was heard in person on 30 August 2006. The applicant represented himself. Mr Clark of counsel represented the Board.
objections to evidence at the hearing of dismissal
10. The hearing of dismissal began with a welter of objections from Mr QX05/8. The applicant first objected to the tender of the s 37 documents. He said the documents should be sworn. I disagreed and accepted them into evidence although strictly speaking it is probably unnecessary to do so since they are supplied to the Tribunal and form part of its file as a result of the operation of s 37. Mr QX05/8 also objected to the tender of Ms Bishop’s statement on the basis it was not sworn, and because Ms Bishop was not available for cross-examination. Mr QX05/8 said it was a breach of the rules of natural justice for me to entertain what he described as untested and unsworn allegations. He noted s 40(1) of the Act permits the Tribunal to take evidence on oath or affirmation. He argued it was therefore inappropriate to admit unsworn evidence. He also argued that while the Tribunal was not required to comply with the rules of evidence, it should insist that the respondent provide sworn evidence to ensure that the proceedings do not go “astray procedurally”: Dahlia Mining Co Ltd v Collector of Customs, Federal Court, 20 December 1991, 833/1991 per Davies J.
11. Ms Bishop’s statement was obviously made in an attempt to assist the Tribunal by organising and presenting the material from the files which needs to be considered for the purpose of the application. She supplied a chronology of events and a narrative that is largely factual. Given the limited scope of the statement, I was content to accept it into evidence without Ms Bishop swearing to its contents even though it might be necessary for her to do so in other jurisdictions. In any event, I decided I could accommodate Mr QX05/8’s concerns by directing that Ms Bishop be contacted by telephone. Mr Clark arranged for that to occur. She proceeded to swear to the contents of the statement. (She had a copy of the statement in front of her.) Mr QX05/8 then set about cross-examining her. Ms Bishop agreed that a number of assertions of fact in the statement – as to the date upon which particular letters were despatched, for example – were based on material gleaned from the file. She agreed they were not matters within her own knowledge.
12. I do not think any of the applicant’s criticisms have merit. Ms Bishop’s statement is a useful summary of the facts. Mr QX05/8 was unable to identify any errors of substance. He seemed to be surprised that he was given the opportunity to do so: his demeanour and his submissions suggested he was under the impression he would be entitled to succeed in his opposition to the respondent’s application if he took technical objections to the admission of the statement and other documents. The statement was accepted into evidence.
the power to dismiss
13. The Tribunal may dismiss an application under s 42A(5) of the Act if the applicant “fails within a reasonable time:
(a) to proceed with the application; or
(b) to comply with a direction by the Tribunal in relation to the application…”
14. The power to dismiss is an important tool that assists the Tribunal to manage its own procedures with a view to “providing a mechanism of review that is fair, just, economical, informal and quick”: s 2A. The power should not be exercised lightly. As Burchett J pointed out in Guse v Comcare (1997) 49 ALD 288, decisions to dismiss under s 42A(5) – especially dismissals arising out of a failure to comply with directions – “should be done very sparingly, and only, I think, as a decision of last resort.”
15. I am unhappy with the dilatory fashion in which the applicant has prosecuted (or, more accurately, failed to prosecute) his application for review. He has failed to comply with directions on a number of occasions. I agree the most recent statement he filed does not adequately deal with the issues it was supposed to address. The respondent is understandably irritated by the delay. But can it fairly be said there is no alternative to dismissing the application? I think there is an alternative: lifting the stay order. I will deal with that issue next.
lifting the stay
16. In the absence of a stay order, administrative decisions ordinarily take effect according to their terms: s 41(1). The act of applying for review of a decision does not prevent the decision being implemented unless the Tribunal accedes to a request for a stay. The power to order a stay is set out in s 41(2). It is only available for the limited purpose of securing the effectiveness of the hearing and determination of the application for review. When dealing with a request for a stay order, the Tribunal is required to satisfy itself that it is desirable to make the order after taking into account the interests of any person affected by the review.
17. The Tribunal is entitled to revisit the decision to order a stay: s 41(3). The respondent has invited me to do so.
18. Mr QX05/8 told the Tribunal at the hearing that his business would quickly come to a halt if he were not entitled to practice while the Tribunal’s review proceeded. He has ongoing obligations to pay rent and meet other business expenses. He said his business would be seriously damaged if the stay were lifted: his clients would be forced to retain other tax agents. Some (perhaps many) might not return if he were able to resume his practice following the completion of the Tribunal’s review. He claimed, and I accept, there was a risk that he would go out of business altogether before the Tribunal could complete its review – which would render the review pointless. But I must also take account of the danger that the stay order might be abused. If the stay provides the applicant with an incentive to drag his feet in the preparation of his case - or does not provide an incentive to prosecute the application for review with appropriate vigour - the stay order may not be conducive to securing the effectiveness of the hearing and determination of the application for review.
19. I am satisfied the stay order has resulted in the applicant pursuing the case with less vigour and attention than he might otherwise have done. He has had the benefit of a stay for the better part of ten months yet he has made limited progress on his application for review. At least one of the explanations for the delay he has given is “pressure of work” – work that he is only permitted to carry on because of the stay.
20. I accept the applicant’s interests will be seriously prejudiced if the stay order is lifted. The interests of his clients and others with whom he has a contractual relationship will also be hurt. His home life may be disrupted as well if he cannot meet his domestic commitments. Those considerations militate in favour of the stay order being maintained. But I must also consider the public interest in cases like this where someone occupies a position of trust: Dekanic and Tax Agents Board of NSW (1982) 6 ALD 240.
21. The supplementary T documents include a range of complaints from people in relation to Mr QX05/8. I accept those complaints have not been proved, or even tested. They may come to nothing on closer examination. But it is a matter of some concern that more complaints were received following the reviewable decision.
22. I cannot conduct a proper review of the fresh complaints before the hearing. It would be inappropriate to conduct a mini-trial at this point in the proceedings: see, for example, Repatriation Commission and Delkou (1985) 8 ALD 454 at 462 per Deputy President Hall; see also Re Griffiths Grif-Air Helicopters Pty Ltd and CAA (1993) 31 ALD 380 at 385 per Deputy President Forgie. However my perusal of the complaints in the T documents suggests the questions over the applicant’s performance continue to arise. The applicant would be hard-pressed to adequately explain all of those complaints in the absence of a full hearing; in any event, while he took objection to the admission of the material, he did not seek to contest the substance of any of it at this point. I think I am entitled to take the fact that complaints continue to be made into account when considering whether the interests of the public militate against continuing the stay.
23. I am satisfied in the circumstances that the public interest would be best served if the applicant did not continue his practice pending an opportunity to conduct a proper review of the complaints that have been made against him.
conclusion
24. I do not accept the continuation of the stay is conducive to the timely and effective hearing of the application for review. I am satisfied in any event that the interests of the public in preventing the applicant from practising outweigh the prejudice to the applicant in particular of being allowed to retain his registration until the matter is finally heard and determined by the Tribunal. In those circumstances, I propose to lift the stay that was imposed pursuant to s 41(2) of the Act. The stay shall be lifted and the decision under review will take effect as of 29 September 2006. A brief delay in implementing the decision will permit the applicant to make some arrangements with his clients that might minimise the disruption to their affairs in particular. I am satisfied the benefits to be had from permitting a brief delay before the stay order is lifted will outweigh any risk to the public in the interim.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the order herein of Senior Member B J McCabe
Signed: .....................................................................................
Associate Adam RyanDate/s of Hearing 30 August 2006
Date of Decision 8 September 2006
The applicant represented himself.
The respondent was represented by Mr Clark, of Counsel.
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