S & T Income Tax Aid Specialists Pty Ltd and Tax Practitioners Board - [2020] AATA 3722

S & T Income Tax Aid Specialists Pty Ltd and Tax Practitioners Board [2020] AATA 3722 (14 September 2020)
Division:GENERAL DIVISION
File Number: 2020/4299
Re:S & T Income Tax Aid Specialists Pty Ltd
APPLICANT

Tax Practitioners BoardAnd
RESPONDENT

File Number: 2020/4300
Re:S & M Income Tax Aid Specialists Pty Ltd
APPLICANT

Tax Practitioners BoardAnd
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member
Date of Decision: 14 September 2020
Place:Melbourne

The Tribunal refuses the Applicants’ request under section 41(2) of the Administrative Appeals Tribunal Act 1975 for an order staying or otherwise affecting the operation or implementation of this review.
The interim stay order made on 27 July 2020 be discharged on 28 September 2020.
...................[sgd]................................................
R Cameron, Senior Member
Catchwords
PRACTICE AND PROCEDURE – application to stay decision under review – decision to
terminate tax agent registration – public interest – consequences to parties – prospects of success – stay refused
Legislation
Administrative Appeals Tribunal Act1975 (Cth)
Legal Profession Act 2004 (NSW)
Tax Agent Services Act 2009 (Cth)
Cases
Bundy and Anor and Australian Securities and Investments Commission [2013] AATA 59
Dennis v Council of the Law Society of New South Wales [2014] NSWSC 1487
Le'Sam Accounting Pty Ltd and Tax Practitioners Board [2020] AATA 890
S & T Income Tax Aid Specialists Pty Ltd trading as Alpha Tax Aid and Tax Practitioners Board [2019] AATA 4099
Scott and Australian Securities and Investments Commission [2009] AATA 798
Trades College Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 1360
WRITTEN REASONS FOR DECISION
R Cameron, Senior Member
14 September 2020
INTRODUCTION.

There are two matters before the Tribunal in which a stay under section 41 (2) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) of the operation or implementation of two decisions made by the Respondent is sought.[1] The Applicants are S & T Income Tax Aid Specialists Pty Ltd (“S & T”) and S & M Income Tax Aid Specialists Pty Ltd (“S & M”).
[1] The first application has been brought by S & T Income Tax Aid Specialists Pty Ltd (application No 2020/4299) and S & M Income Tax Aid Specialists Pty Ltd (application No. 2020/4300).
Both Applicants are registered tax agents. They carry on business as such. The sole director of each of the Applicants is Mr McGuid. He holds all the issued shares in S & T, and one third of the issued shares in S & M. There is no doubt that he is their driving force. Neither of the other two shareholders in S & M are registered tax agents. Mr McGuid has been registered and carried on business as a tax agent since February 1969 approximately 51 years.
APPLICATION IN PROCEEDING NO. 2019/5061 BY S & T.
S & T it should be noted, also has a pending application before the Tribunal in proceeding No. 2019/5061. This application was the subject of some consideration both in oral and written submissions by both parties before the Tribunal in this stay application. Therefore, it is appropriate to briefly mention some aspects of that proceeding.
In application No. 2019/5061, S & T sought review of a decision made by the Respondent on 11 July 2019 to terminate its registration as a tax agent. The decision by the Respondent to terminate S & T’s registration as a tax agent was made on the grounds that the Respondent determined that S & T had failed to comply with section 30-10(7) of the Code of Professional Conduct (“the Code”) contained in the Tax Agent Services Act2009 (“TAS Act”).
The particular breaches of the Code by S & T relied upon by the Respondent were findings that it did not ensure that the tax agent’s services it provided, or were provided on its behalf, were provided competently by the preparation and lodging of income tax returns on behalf of eight clients for the financial year ended 30 June 2016, without taking adequate steps to ensure that such returns contained accurate information that was supported by appropriate substantiation.
In that application S & T also applied for a stay order. That application was opposed by the Respondent. After a fully contested hearing, Senior Member Poljak granted a stay on terms on 9 October 2019.[2] One of the terms of the stay order granted was that until further order S & T undertook to the Tribunal that it would not engage any new clients.[3]
[2] S & T Income Tax Aid Specialists Pty Ltd trading as Alpha Tax Aid and Tax Practitioners Board [2019] AATA 4099.
[3] This term is contained in paragraph 5 of the stay order made by Senior Member Poljak.
The final hearing of application No. 2019/5061 has concluded with Senior Member Poljak’s decision being reserved.
THE REGULATION OF TAX AGENTS: THE TAS ACT.
The regulation of tax agents is governed by the provisions of the TAS Act. The Respondent Board is created by Part 6 of the TAS Act. The functions of the Respondent include administration of the system of registration of tax agents and to impose sanctions for non-compliance with the Code.[4] More will be said about the Code further in these reasons.
[4] The functions of the Respondent Board are prescribed by section 60-15 of the TAS Act.
It is useful for the purposes of this application to consider the objects of the TAS Act which are set out in section 2-5:
2-5 Object
The object of this Act is to ensure that *tax agent services are provided to the public in accordance with appropriate standards of professional and ethical conduct. This is to be achieved by (among other things):
(a) establishing a national Board to register tax agents, BAS agents and tax (financial) advisers; and
(b) introducing a *Code of Professional Conduct for *registered tax agents, BAS agents and tax (financial) advisers; and
(c) providing for sanctions to discipline registered tax agents, BAS agents and tax (financial) advisers.
It can be seen from an examination of these objects, ensuring that the services of tax agents are provided to the public in accordance with appropriate standards of professional conduct by reference to a Code of Professional conduct assume primacy. It is a regulatory mechanism which has been introduced, as one frequently finds applicable to a variety of professions or occupations. In the case of tax agents their purpose is to protect members of the public who retain the services of them for reward to advise in relation to their taxation affairs, provide sundry tax services (including such things as dealing with the Australian Taxation office (“the ATO”)) and of course assist with the preparation and lodgement various returns with the ATO in accordance with applicable legislation.
Understandably, these objects emphasise public interest considerations. This is so because most Australians retain the services of a tax agent for the purposes of preparation and lodgement of their income tax returns with the ATO. The need to retain the services of a tax agent by so many taxpayers is because in many respects tax law is complex, and the compliance obligations cast upon taxpayers are significant. More will be said about this object later in these reasons, but it is a reflection of the intention of Parliament of the importance that members of the public can obtain professional services from registered tax agents which they pay for, that are of the highest possible standard. This must also be considered in light of the well-known sanctions that are applicable for conduct on the part of a taxpayer, such as lodging false or misleading income tax returns with the ATO. Those sanctions can range in their severity but of course do include significant monetary penalties (as indeed were imposed on several of the Applicants’ clients following an ATO audit of their affairs. Details of these instances will be addressed later).
“Part 2-Registration” of the TAS Act establishes the requirements that must be satisfied with respect to eligibility for registration, applying for registration and renewing registration as a tax agent, amongst other things. The part contains eligibility criteria that must be satisfied by an applicant for registration as a tax agent whether it is an individual, a partnership or a company.
Under section 20-1 of the TAS Act to practice as a tax agent and provide services for a fee, or to engage in other conduct connected with providing such services, a person must be registered. A party will be eligible for registration if they are a fit and proper person and have appropriate qualifications and experience.
Section 20-5[5] provides criteria that must be met by a person (whatever legal personality they may have) to be eligible for registration as a tax agent. Relevantly, for the purposes of this application subsection 20-5 (1) (a) provides that in the case of “Individuals” a person is eligible for registration if the Respondent Board is satisfied that the individual is a fit and proper person. Subsection 20-5 (3) provides that in the case of “Companies” a company is eligible for registration as a registered tax agent if the Respondent Board is satisfied that:
(a) each director of the company is a fit and proper person; and
…
(d) the company has
(i) in the case of registration as a *registered tax agent-a sufficient number of individuals, being registered tax agents, to provide tax agent services to a competent standard and carry out supervisory arrangements…
[5] The first reviewable decision forms part of document T 1 of the T-documents at pages 8 and 9.
The Code is established by “Part 3” of the TAS Act. It regulates a tax agent’s personal and professional conduct. Section 30-10 specifies the constituent elements of the Code. Those elements are enumerated with some level of particularity. The subject headings are “Honesty and integrity”, “Independence”, “Confidentiality”, “Competence” and “Other responsibilities”.
Under section 30-15 there are a range of sanctions open to the Respondent Board if it is satisfied, after conducting an investigation, that there has been a failure by a registered tax agent to comply with the Code. These sanctions include, amongst other things, suspension or termination of registration.
THE REVIEWABLE DECISIONS.
S & T in application No 2020/4299 seeks review of a decision made by the Respondent on 11 June 2020 and notified on 26 June 2020 to terminate its registration as a tax agent (“the first reviewable decision”).[6]
[6] The first reviewable decision forms part of document T 2 of the T-documents at pages 8 to 10.
S & M in application No 2020/4300 seeks review of a decision also made by the Respondent on 11 June and notified on 26 June 2020 to terminate its registration as a tax agent (“the second reviewable decision”).[7]
[7] The second reviewable decision forms part of document T 2 of the T-documents at pages 18 to 20. Collectively, throughout these reasons they will be referred to as the “reviewable decisions”.
In both the first and second reviewable decisions the Respondent decided that each of the Applicants no longer met the requirements for registration. A reason relied upon in each case by the Respondent that the requirements for registration were no longer met concerned findings it made about Mr McGuid. It determined that it was satisfied on the balance of probabilities that both companies had ceased to meet the tax practitioner registration requirements of section 20-5 (3) (a) of the TAS Act. This was because it found that Mr McGuid was not a fit and proper person.
Concerning S & M, an additional ground was relied upon by the Respondent to terminate its tax agent registration, it was satisfied under subsection 20-5 (3) (d) (i) of the TAS Act that it did not have a sufficient number of individuals, being registered tax agents, to provide taxation services to a competent standard, and to carry out supervisory arrangements.
The Respondent’s board having made this decision on 20 February 2020. The decision in each case was thereby made to terminate each companies’ registration as a tax agent effective from 31 July 2020.
THE GROUNDS RELIED UPON BY THE RESPONDENT TO MAKE A FINDING THAT MR MCGUID WAS NOT A FIT AND PROPER PERSON AND TERMINATE THE APPLICANTS’ REGISTRATION AS TAX AGENTS.
As it was able to do under Subdivision 60-E – “Investigations” of the TAS Act, the Respondent conducted an investigation into the continued registration of Mr McGuid as a tax agent. It gave written notice to him of the subject matter of such investigation. His written response and submission were invited, duly received and considered.
At a meeting of the Respondent’s Operations Committee on 20 February 2020 a finding was made that Mr McGuid had ceased to meet the tax practitioner registration requirements of subsection 20-5 (1) (a) of the TAS Act because he is not a fit and proper person.[8] Five grounds were relied upon. It is appropriate to reproduce those findings in full for the purposes of these reasons.
[8] The minutes of the Operations Committee meeting of 20 February 2020 are document T 4 of the T-documents. In the course of submissions counsel for the Respondent referred to the contents of those minutes in detail.
1. He failed to ensure that a tax agent service that S & T Income Tax Aid Specialists Pty Ltd (the Company) provided, or that was provided on its behalf, was provided competently by preparing and lodging income tax returns on behalf of 8 clients for the financial year ending 30 June 2016:
a. without taking adequate steps to ensure that the income tax returns contained accurate information that was supported by appropriate substantiation; and/or
b.in circumstances where those income tax returns were subsequently audited by the ATO and the ATO:
i. issued notices of amended assessment of income tax to the 8 clients collecting a total tax shortfall of $30,288.19
ii. issued notices of assessment of shortfall penalty to 6 of the clients collecting total penalties of $6,933.65.
2. He failed to ensure that a tax agent service that the Company provided, or that was provided on its behalf, was provided competently by preparing and lodging income tax returns on behalf of 56 clients for the financial year ended 30 June 2016:
a. without taking adequate steps to ensure that the income tax returns contained accurate information that was supported by appropriate substantiation; and/or
b. in circumstances where those 56 income tax returns were subsequently amended, in response to a prompter letter issued by the ATO, resulting in 56 amended assessments, an increased total amount of assessed tax payable of $106,168.43, and a total amount payable to the Commissioner of Taxation following the issue of the amended assessments of $125,418.52.
3. He failed to ensure that a tax agent service that the Company provided, or that was provided on its behalf, was provided competently by preparing and lodging income tax returns on behalf of 18 clients for the financial year ended 30 June 2018:
a. without taking adequate steps to ensure that the income tax returns contained accurate information that was supported by appropriate substantiation; and/or
b.in circumstances where those income tax returns were subsequently audited by the ATO and the ATO:
i. issued notices of amended assessment of income tax to the 18 clients collecting a total tax shortfall of $148,479.55
ii. issued notices of assessment of shortfall penalty to 17 of the clients collecting total penalties of $68,050.46.
4. He failed to ensure that the Company did not accept any new clients as per the undertaking to the AAT, and as stated in the AAT’s order dated 9 October 2019, in that the Company:
a. added a new client, Miss Frederieke Kirkman, to its tax agent portal on 11 November 2019 and lodged Miss Kirkman’s income tax return for the year ended 30 June 2019 on 18 November 2019
b. added a new client, Mr Jordan Scoular, to its tax agent portal on 12 November 2019 and lodged Mr Scoular’s income tax returns for the years ended 30 June 2018 and 30 June 2019 on 20 November 2019 and 19 November 2019 respectively.
5. He interacts with officers of the ATO and TPB in a threatening, obstructive, and/or unprofessional manner, in that:
a. On 30 March 2015, Mr McGuid emailed ATO officer Mahadeva Kuhasri to express his discontent with audit cases, writing “You left me with no alternative but to defend my staff against your all evil plans and thoughts, you should commit Hara Kiri, we are in Australia.”
b. On 2 March 2018, Mr McGuid emailed ATO officer Kathleen Nero, writing “as if the ATO has nothing to do but kill, kill, kill” and “then you come and you blast the hell out of our clients as to encourage them to seek new frontier called hide and seek, catch me if you can, and I hate you” and then threatened to raise the matter with the Treasurer of the Commonwealth at Mr McGuid’s “next … personal meeting” with him
c. On 16 August 2019, Mr McGuid emailed the Board, writing, in relation to the Board’s CEO, “Jesus Christ Mike, I feel pity for you. Don't know that some coward is using you and your name to use the sword against 350 souls, and rumors has it that you are using Allen Ho, as front cover up in front of the canon. Don't you know that by using one sword against 350 souls you'I get 350 swords back on you. Please Mike, we need you as our guide not as executioner, and slaughterman. That is by terminating the lives of 350, those 350 will work on tormenting your, you'll affect their livelihood and say 3 kids each = 1,050 children, it will bounce back to your 3 kids, different cultures, different attitudes. Evil begets evil, tell the coward using you, repent, otherwise every inch of your street will be cursed.”
STEPS FOLLOWING THE FINDINGS OF THE RESPONDENT’S OPERATIONS COMMITTEE CONCERNING MR MCGUID ON 20 FEBRUARY 2020.
Following the decision of the Respondent’s Operations Committee on 20 February 2020, the CEO of the Respondent board wrote to Mr McGuid on 4 March 2020 informing him of the finding that he was not a fit and proper person within the meaning of subsection 20-5 (1) (a) of the TAS Act and the grounds relied upon by the Committee.[9] He was further informed that by reason of the finding that he was not a fit and proper person the Respondent board had decided to terminate his registration as a tax agent taking effect from 8 April 2020.
[9] The letter from the CEO of the Respondent to Mr McGuid is document T 4 of the T-documents.
On 9 April 2020, the Respondent’s lawyer wrote to S & T’s then solicitors concerning several topics. They included the proceeding before Senior Member Poljak for which a decision was then pending. It then stated that in the light of the Respondent’s finding that its sole director is not a fit and proper person S & T no longer meets the registration requirements under subsection 20-5 (3) (a) of the TAS Act. The letter also sought consent from S & T’s solicitors seeking leave to make additional submissions in relation to that company’s failure to meet the registration requirements.
On 13 April 2020, Mr McGuid sought review of the decision made by the Respondent terminating his registration as a tax agent from 8 April 2020 in application No. 2020/2219 before this Tribunal.
A stay application was made by Mr McGuid in application No. 2020/2219. However, no interim stay was sought by him. In the light of the present application this is somewhat surprising. The hearing of his stay application was heard by Senior Member Lazanas on 4 June 2020. Her decision on such application has been reserved.[10]
[10] The Applicants, in the submissions prepared by counsel at paragraph 7, acknowledged that there is no present stay in that proceeding.
There was correspondence passing between the Respondent and Mr McGuid after this date concerning the question of whether S & T and S & M continued to meet the registration requirements of the TAS Act when the Applicant sole director’s registration as a tax agent had been terminated. It is not necessary to reproduce the details of this correspondence other than to observe that the reference to it has been satisfactorily made in the submissions filed on behalf of the Respondent by its counsel.[11]
[11] Paragraphs 16 to 25 of those submissions under the heading "Correspondence with the Company Applicants and Proceeding No AAT 2020/2219."

There was no correspondence emanating from Mr McGuid, the Applicant companies or anyone on their behalf, either providing an explanation as to how the Applicants satisfied the registration requirements or, alternatively, offering any proposal or means by which they could satisfy those requirements under subsection 20-5 (3) (a) of the TAS Act, in the future.
Following this passage of correspondence on 11 June 2020 the Operations Committee of the Respondent determined that it was satisfied on the balance of probabilities that each of the Applicants had ceased to meet the registration acquirements under subsection 20-5 (3) (a) of the TAS Act.[12]
[12] The minutes of the Respondent’s Operations Committee meeting of 11 June 2020 are found in document T 6 of the T-documents.
As noted earlier in these reasons each of the Applicants was notified of the reviewable decisions by letters dated 26 June 2020.
THE INTERIM STAY ORDER.
On 27 July 2020, Deputy President McCabe granted an interim stay order (“the interim stay order”) subject to conditions that:
(a)all tax agent services carried out by the Applicants be supervised by registered tax agents, Pei Fen Liu and Robert John Heinrich, who are current employees of the Applicants; and
(b)the Applicants undertaking that they would not engage any new clients; and
(c)the Applicants sending a letter, approved by the Respondent, to their current clients by 5:00PM on 30 July 2020 advising of the decision of the Respondent to terminate their tax agent’s registration and the ongoing appeal.
The Applicants seek a continuation of the interim stay order in the same terms as

sub-paragraphs (a) and (b) of those granted by Deputy President McCabe.
THE MATERIAL BEFORE THE TRIBUNAL IN THIS APPLICATION.
It is appropriate to record what material the Tribunal was directed to and considered for the purposes of this application.
(a)Mr McGuid swore an affidavit on 6 August 2020 and exhibits thereto (“the McGuid affidavit”);
(b)The T-documents in both applications;
(c)The T-documents in application No 2020/2219;
(d)The Supplementary T-documents in application No 2020/2219;
(e)Submissions prepared by the Applicants’ counsel; and
(f)Submissions prepared by the Respondent’s counsel.
THE POWER OF THE TRIBUNAL TO GRANT A STAY.
Section 41 (2) of the AAT Act gives the Tribunal the power to make such orders staying or otherwise affecting the operation or implementation of a reviewable decision as it considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review. The power is a broad one, and where appropriate it can be exercised with a grant of conditions attaching to any order so made.

It is not necessary for the purposes of this application and these reasons to embark on an excursion into the exercise of the stay power of the Tribunal in a general sense.
However, frequently when addressing an application for a stay under section 41 (2), the approach adopted by Downes J in Scott and Australian Securities and Investments Commission[13] is adopted. Those factors need not be repeated for the purposes of these reasons as they are well-known and readily accessible. Whilst the factors identified by Downes J in Scott are important considerations to be taken into account when considering an application under section 41 (2) they should not be seen as an inflexible checklist or code that must be complied with by any prospective applicant. Given that the exercise of the power conferred by section 41 (2) is discretionary it is almost inevitable that some of those factors will assume more importance than others. It is conceivable where there might be little or no evidence concerning one, but significant and substantial evidence addressing another, which would be sufficient to justify the grant of the stay sought.
[13] [2009] AATA 798.
In terms of the public interest impacts that the Tribunal should consider when determining a stay application under section 41 (2), the observations of Tamberlin J in Bundy and Anor and Australian Securities and Investments commission[14] are apposite to this case.

That is, the need to protect consumers and customers is a matter of particular importance. This approach is also consistent with the objects of the TAS Act considered above. Those objects, it will be recalled, include ensuring that tax agents services are provided to the public in accordance with appropriate standards of professional and ethical conduct.
[14] [2013] AATA 59.
THE APPROACH OF THE APPLICANT IN SEEKING A STAY UNDER SECTION 41 (2) OF THE AAT ACT.
The Applicants in the affidavit of Mr McGuid, together with submissions made by counsel, did not address each of the Scott considerations in a way that is frequently done.

The approach was to highlight certain matters from the affidavit material together with the known facts concerning the existing applications on foot before the Tribunal to which the Respondent Board and Mr McGuid are party. Those applications of course dealing with essentially the same subject matter namely whether Mr McGuid is a fit and proper person to be registered as a tax agent.
Other emphasis was placed on the effect of the business of Applicants, prospects of success and what it described as “public policy” issues. These will be addressed further under separate headings in a more conventional way as the Respondent has done.
Counsel for the Applicant both in his written and oral submissions stressed the existence of the two existing applications before the Tribunal, referred to above, seeking review of findings by the Respondent Board concerning S & T and Mr McGuid’s fitness to be registered as a tax agents.
Senior Member Poljak, as noted earlier in the first matter (application brought by S & T, No. 2019/5061), has reserved a decision after a final hearing of the application.
Senior Member Lazanas after a hearing on 4 June 2020 in the second matter, reserved her decision in relation to an application by Mr McGuid for a stay in application No. 2020/2219. No stay presently being in force.
Given these two reserved decisions it is contended by the Applicant companies that in effect the Respondent seeks to pre-empt those reserved decisions. In doing so it is submitted that such conduct on the part of the Respondent Board in making the reviewable decisions (and giving effect to them) against the Applicants will constitute an “abuse of power” unless a stay of these two applications is given, pending the final determination of the two matters in which decisions have been reserved. If a stay is not granted the Applicants contend that not only will it constitute an abuse of power, but the appeals in the existing two proceedings in which decisions have been reserved will otherwise be rendered nugatory.
For these reasons, they contend that a stay on similar terms to the interim stay granted by Deputy President McCabe and also in application No. 2019/5061 is an appropriate approach for the Tribunal to adopt as it will permit the Applicants to continue providing a service as registered tax agents with such services being provided by appropriately qualified persons other than Mr McGuid.
The Respondent Board’s approach to the Applicant’s contentions concerning pre-emption of existing proceedings and a potential abuse of process was to understandably rely upon its statutory responsibilities. Those responsibilities are, as noted earlier, to register and regulate tax agents. Concomitant with this obligation is the need to protect taxpayer consumers by ensuring the registration requirements and professional standards are met.
In support of this contention it identifies three relevant matters in particular. They are:
(a)The grounds on which Mr McGuid was found to no longer be a fit and proper person largely fell within the ambit of the matters for consideration by the Tribunal in 2019/5061;
(b)The Determination by the Respondent board that Mr McGuid is no longer a fit and proper person has not been set aside by the Tribunal; and
(c)The termination of Mr McGuid’s registration took effect on 8 April 2020 and is not presently subject to any stay order.
Additionally, emphasis was placed by the Respondent on an absence of evidence to enable the Applicants to establish a sufficiently arguable case for setting aside the reviewable decisions. More will be said about this when the Applicants prospects of success are considered separately.
DOES THE RESPONDENT BOARD’S DECISION TO TERMINATE THE APPLICANT’S REGISTRATION PRE-EMPT EXISTING PROCEEDINGS OR OTHERWISE CONSTITUTE AN ABUSE OF “POWER” OR PROCESS?
In answering this question, the Tribunal agrees with the contention of the Respondent that its statutory obligations must be considered. These obligations must also be viewed from the perspective of the TAS Act’s public interest objects. Such considerations must also be coupled with the company eligibility requirements of section 20-5 (3) which dictate that each director of the company is a fit and proper person. The Respondent has made a determination that Mr McGuid, the sole director of each applicant, is not a fit and proper person. That decision which has not as yet been set aside is not even the subject of a stay imposed by the Tribunal. By reason of this fact each applicant is ineligible for registration.
The Applicant did not, in support of its contentions, cite any authority to the Tribunal on the issue of abuse of process or power. It is not necessary to embark upon a detailed excursion into the doctrine of abuse of process. It is not an unknown concept to the Tribunal.[15]

The categories of abuse of process are not closed. However, they usually fall into several readily identifiable classes. It can be where the process of the Tribunal is being used to exert pressure to affect an object not within the scope of such process. Alternatively, it may be where a step is taken for a purpose (sometimes described interchangeably as an ulterior purpose) other than that for which proceedings are properly designed and exist. Finally, it may be where one party is seeking some collateral advantage beyond what the law offers.
[15] Indeed, by way of example there is a power to dismiss an application for review in section 42B (1) (c) of the AAT Act if the Tribunal is satisfied that an application is an abuse of process.
The Tribunal cannot find any support for a contention that conduct of the Respondent Board falls into any of these recognised categories of abuse of process. The Applicants did not cite any authority to the Tribunal during the hearing of the stay application that did so. There is no suggestion of malice or any other improper purpose.
The Respondent at all relevant times was carrying out the tasks that are imposed upon it by Parliament. There is no evidence to show that termination of each Applicant’s registration as tax agents is outside the scope of the TAS Act, or has been engaged in for some improper, or collateral purpose directed at either the Applicants or even Mr McGuid.

The determination by the Respondent, for which there was a proper basis on rational grounds, that Mr McGuid, as each Applicants’ sole director, was not a fit and proper person meant that under section 20-5 (3) of the TAS Act they were not eligible for registration as a tax agent. That being so the Respondent was entitled to and indeed required by the applicable provisions of the TAS Act to make the reviewable decisions as it did, terminating their registration.
On the contrary, and more will be said about this later when a consideration is undertaken on the prospects of success, one must view the conduct of the Applicant companies which has been outlined previously, and their sole director of whom they are his alter ego, with a degree of realism. His conduct in carrying on the business of a registered tax agent for reward, both in his dealings with the client taxpayers and the ATO, falls well short of what is expected both from the perspective of the TAS Act requirements, and what a fee paying member of the public would expect from a tax professional who assumes significant professional responsibility to their clients as part of their retainer.
THE APPLICANTS’ PROSPECTS OF SUCCESS.
When addressing this factor it has long been held that it is not appropriate to conduct a preliminary hearing, or what is sometimes referred to as “a mini trial”, of the evidence and issues to be raised subsequently at the hearing and determination of an application.[16]
[16] The Respondent's counsel in his submission referred to it as not requiring an attempted "exhaustive evaluation of the merits of the case." Whichever way it is described the effect is the same. Deputy President McCabe in Le’ Sam Accounting Pty Ltd and Tax Practitioners Board [2020] AATA 890 at [13], stated that a mini trial is not to be conducted in which "the parties exhaustively ventilate all of the matters that might come up at a final hearing".
However, this does not mean that the evidence to be furnished to the Tribunal in support of a stay application should be scant, or otherwise comparatively limited. The Tribunal finds the views of Member Maryniak QC in Trades College Australia Pty Ltd and Australian Skills Quality Authority[17] instructive. He stated in the circumstances of a stay application one would expect a party to put their best foot forward. Whilst the format and nature of such evidence will not need to run to some form of comprehensive witness statement, or the equivalent of a running transcript at trial, it should condescend to sufficient detail to enable the Tribunal to form a reasonably accurate preliminary assessment on the prospects of success. To some extent this would be analogous to the obligations cast upon a defendant in a conventional civil proceeding resisting an application for summary judgement in a court of competent jurisdiction.
[17] [2018] AATA 1360 at [19].
The Tribunal finds that the evidence adduced by the Applicants in the McGuid affidavit concerning their prospects of success is very scant indeed. Much of his affidavit is conclusory without deposing to underlying facts that support such a conclusion.

For instance, in paragraph 18 Mr McGuid states that he maintains he did not engage in any wrongdoing. He accepts there may have been a misunderstanding and misinterpretation of the rules and regulations. However, he never intended to do wrong.
In counsel’s submissions it is contended that there are reasonable grounds to believe that the application will be successful. It is further stated that this could be the case even in circumstances where conditions may be imposed upon Mr McGiud’s continued involvement (presumably with each of the Applicants) and being able to continue to practice.

This contention seems to be an oblique reference to the possibility (which was canvassed more forcefully by counsel for the Respondent) that for the Applicants to be able to preserve their registration, and business of tax agents it may be necessary to appoint as a director a suitably qualified individual. The Tribunal cannot accept that there are reasonable grounds to believe that the application will be successful. The evidence against Mr McGuid which supports the finding that he is not a fit and proper person to be registered as a tax agent is very strong indeed. As the sole director of each applicant once his registration is terminated, as previously noted, so must that of the Applicants. The appointment of another director suitably qualified is beside the point. However, it is an obvious method of preserving their registration should someone seek to take that step. Given the history of these matters it does seem surprising that it has not occurred. It is not within the remit of this Tribunal to probe further on why it has not occurred.
The case against the Applicants is a strong one. Of concern is that the ATO conducted an audit of the Applicants’ taxpayer clients which revealed a pattern of conduct by the Applicants over several years for a significant number of their clients which resulted in a substantial cost to the revenue. Not to mention penalties to the taxpayer clients.
There were also the breaches of the undertaking given by S & T to the Tribunal in application No. 2019/5061. In paragraph 21 of the McGuid affidavit an explanation is offered.

He deposes that the two new clients for whom S & T acted were the spouses of the existing clients. In paragraph 22 of his affidavit he goes on to explain that he regarded these persons as not strictly new clients “but expansions of existing work that was being conducted.” Further, he deposed that it was not his intention to permit S & T to breach the terms of the undertaking.
The Tribunal cannot accept this explanation. No new clients means just that. It is not difficult to comprehend. It is puzzling in the extreme that a tax agent of 51 years’ experience would think otherwise. Similarly puzzling is the fact that having had competent legal advice at his disposal he did not think to ask his lawyers whether he should act for those clients in the face of the undertaking that had been given. Also, one has to question why in another sense he might not have seen fit to crosscheck with the Respondent Board’s lawyers to determine what their attitude was to such a suggestion prior to commencing to act for them. Surely, by then the gravity of the predicament that he was facing must have occurred to him. Yet he took the risk. It is yet another example of poor professional judgement on his part.
In the face of the very specific particulars provided by the Respondent of the conduct relied upon by it in determining that Mr McGuid is not a fit and proper person, an appropriately drafted affidavit for the purposes of a stay application should have been prepared. Instead, his affidavit does not address in detail why he says the findings of the Respondent are wrong. For instance, he could have addressed the grounds relied on by the Respondent. Very specific details of the number of tax returns and the relevant financial years concerned were identified., The allegations were that as a registered tax agent he did not take adequate steps to ensure that the income tax returns the Applicants prepared, that were audited by the ATO contained accurate information, supported by appropriate substantiation, readily come to mind. If he was stating that he was misled by the taxpayer, he should have said so and given particulars of how that occurred, and when it occurred. If there is some other exculpatory evidence that the Applicants intend to rely on, he should have deposed to it in sufficient detail. His affidavit is completely silent on these topics.
There is also the issue of Mr McGuid’s intemperate and unprofessional correspondence with the ATO. He does not provide any explanation for why such correspondence was sent. There is no attempt at contrition, insight or even perhaps an apology for such correspondence. It is simply not addressed. On its face it does not reflect well on the Applicants’ sole director.
The allegations made against Mr McGuid are not addressed by him in the correspondence, an occasion where one would expect such allegations if they were incorrect, or as he put it, if he had done nothing wrong, to be appropriately responded to in detail. The Tribunal is just left in the dark. Mr McGuid, the Applicants’ sole director, has been a tax agent for 51 years. Surely, it can be expected that he would have crafted an appropriate reply and sworn an affidavit in a similar vein for the purposes of this application.
The Tribunal is left with no other conclusion than that the failure to respond by the Applicants and their sole director, is an admission by silence or conduct. The relationship between the parties being that of registered tax agents and their statutory regulator is such that, on receipt of the letters of 26 June 2020 containing the reviewable decisions, if any part of their contents were incorrect, the ordinary practice of a recipient would be that a reply might properly be expected. Especially if he desired to set the record straight as it were. The failure of their sole director to respond to the contents of those letters or depose in the McGuid affidavit why such decisions were incorrect, as he says they are, can be evidence of the truth of the statements in such correspondence.[18] The Tribunal reaches this conclusion.
[18] Reference is made to Cross on Evidence, Chapter 17 at [33435] “Admissions by Conduct” and the authorities referred to therein. The Tribunal readily acknowledges that under section 33 (1) (c) of the AAT Act it is not bound by the rules of evidence. However, it is not a license for or an "evidentiary free for all". Where it is appropriate to do so they can be applied. The rules of evidence concerning admissions by conduct are rational and logical having been developed and applied over many years. There is no reason why they should not be adopted in this instance.

The Tribunal considers as contended for by the Respondent, that even if it accepts the strength or substance of the cases advanced by both Applicants and Mr McGuid the prospects of success are best remote.
CONSEQUENCES FOR THE APPLICANTS OF THE REFUSAL TO GRANT A STAY.
Several relevant matters are identified by the Applicants. These considerations will be addressed collectively.
S & T currently employs 10 staff other than Mr McGuid.
S & T has approximately 600 clients. Some of those clients are individual taxpayers, others are businesses and companies for whom tax returns are prepared.[19]
[19] Paragraph 5 (d) of the McGuid affidavit.
Mr McGuid has deposed that if a stay is not granted as sought, S & T will cease to trade. Pending the hearing and determination of this application its employees will have no work and will be terminated or at the very least be stood down. It will be necessary to refer each of S & T’s clients to another appropriately qualified tax agent. This could be difficult given the proximity to the end of the recent financial year. This could cause those clients prejudice.
Presently, S & T through Mr McGuid is engaged with approximately ten objections with the ATO.
S & M currently employs 10 staff for the purposes of carrying out and providing various taxation services. Some of those staff members also work or provide services for S & T.[20]
[20] Paragraph 5 (b) of the McGuid affidavit.
S & M has approximately 56 clients. Some of those clients are individuals, others are businesses and companies.
If a stay is not granted Mr McGuid has, similarly to S & T, deposed that S & M will cease to trade. Most likely the employees will have no work, most likely be stood down and their employment may need to be terminated. It will be necessary to refer each of its clients to another appropriately qualified tax agent. This could be difficult given the proximity to the end of the recent financial year. This could cause those clients prejudice.
Also, if a stay is not granted there is the potential inconvenience to clients and prejudice they may suffer given the time of year which is relatively close to the end of the
30 June 2020 financial year and the services of a registered tax agent are needed.
There is also a contention that the Applicants will suffer a loss of goodwill[21] of the business undertaking and one infers that this is also likely to include damage to reputation.
[21] In oral submissions counsel for the Applicants stated that it would “destroy the goodwill” of their business.
The Respondent concedes that the potential effect on continuing employment of the Applicants’ staff is real and not something that it takes lightly.
As to the position of the Applicants’ clients, the Respondent contends that also it is highly likely that they will experience some inconvenience in the event of a refusal of the stay application. However, whilst there almost certainly would be inconvenience to those clients this must be seen from a perspective of the exposure they face from continuing to retain the services of a tax agent, or agents who do not meet eligibility requirements to maintain tax agent registration, and otherwise receive their services to the requisite professional standard required by the TAS Act and the Code. Indeed, counsel for the Respondent in submissions during the hearing contended that whilst the Applicants’ clients might endure some inconvenience if a stay were refused, there would not be fundamental hardship or prejudice. On the contrary, he submitted that it is more likely that a refusal to grant a stay would in fact protect the clients’ interests because they would be likely to obtain more competent professional advice in relation to their taxation affairs. Given the evidence against the Applicants which has been touched on earlier there is much force in this submission.
In response to the position of both staff members and the potential damage or loss of goodwill the Respondent maintained largely the same approach. That is at the end of the day this outcome has been caused by the failure of the Applicants and their sole director, Mr McGuid, to meet eligibility requirements, and in particular for him to conduct himself in such a way as to satisfy the fit and proper person requirements of the TAS Act and the Code. The Tribunal accepts this contention. In doing so, reference is made to the section of these reasons addressing prospects of success. Particularly, the failure of the Applicants and their sole director to provide any real evidence in support of the contention that they have done nothing wrong or had not otherwise violated the provisions of the Code.
They are the architects of their own undoing.
Another matter raised by counsel for the Respondent in addressing the consequences for the Applicant touched on a consideration of the prospects of success and should be repeated. As submitted, it is always open to the Applicants to appoint a new director who is a registered tax agent. In doing so that would avoid all the potential consequences for the company Applicants of which they complain. Mr McGuid offers no reason why the two registered tax agents who are continuing to provide such services for the Applicants in compliance with the provisions of the interim stay order granted by Deputy President McCabe, could not be appointed as a director. In the event that this occurred, they could continue to service the Applicants’ clients and offer appropriate taxation services. It is, as counsel for the Respondent submitted, a practical way to deal with this question.
The adverse consequences or impact for the Applicants could be reduced or avoided completely and there would be no need to stand down or terminate employees.
Presumably also, it would avoid reputational damage or loss of goodwill. The Tribunal accepts this contention. It does weigh powerfully against the impact of this factor in deciding whether to grant the stay sought.
Counsel for the Respondent also submitted that if there was any adverse impact caused by a refusal to grant a stay, it can be reduced by the Tribunal providing an early final hearing. If proceedings are expedited, the period of termination would be reduced in the event that the applications were ultimately successful. The Tribunal accepts this contention. It is a matter which could be fixed for hearing as an expedited case so that it can be heard and determined.
PUBLIC INTEREST CONSIDERATIONS.
The Applicants rely upon several grounds which may be described as attempting to neutralise the impact of public interest considerations as a factor to be weighed by the Tribunal in deciding whether to grant a stay. Some of these matters have to some extent already been considered, and insofar as they have the previous observations made by the Tribunal in these reasons are referred to and repeated.
Although it may to some extent crossover with the issue of prospects of success, the Applicants emphasise that the conduct on the part of their sole director Mr McGuid did not involve any question of appropriation or misappropriation of any client monies. The Tribunal acknowledges this fact. It is not however, a matter that significantly diminishes public interest considerations. The Tribunal places little emphasis on it.
Another factor for which the Applicants place significant emphasis is that a regime acceptable to the Tribunal in respect of S & T has been in place since 9 October 2019. There is also the existing interim stay order granted by Deputy President McCabe referred to earlier, which contains similar provisions. Those provisions of course, only permit tax agents’ services to be provided to the Applicants’ clients by the two registered tax agents named in those orders, who are their employees, on their behalf. It was reiterated that nowhere has it been suggested that either of those two registered tax agents are not persons who would be appropriately qualified to fulfil the role of tax agent providing services to the Applicants’ clients pending the hearing and determination of all matters before the Tribunal. This approach is said by the Applicants will satisfy the public interest considerations applicable to this matter.
Reference was also made in counsel’s submissions on behalf of the Applicants to a decision of Dennis v Council of the Law Society of New South Wales[22] in support of its contention that the existing “regime” in application No. 2019/2061 should be applied to these applications pending their final hearing and determination.
[22] [2014] NSWSC 1487.
The Tribunal cannot agree with this contention. That case is quite distinguishable from this one and the application of the stay provisions contained in section 41 (2) of the AAT Act.
[23] It should be noted that the LPA has since been repealed. This fact does not assume any relevance for the purposes of this application.
In Dennis’s case the plaintiff solicitor successfully sought orders setting aside the decision of the Law Society of NSW to suspend his practising certificate under powers conferred upon it by section 548 (2) of the Legal Profession Act 2004 (NSW) (“LPA”).[23]
The Law Society was given the power to do so under section 548 (1) of the LPA, if it considered it necessary in the public interest to immediately suspend a local practising certificate on the ground of the seriousness of the conduct in respect of which a complaint has been made. It is not a stay application and is the exercise of a power under section 548 (2), which was described by one judge in a previous decision as of an “emergency” or temporary nature. The suspension continues until such time as the complaint is withdrawn, suspension revoked, the complaint finally dealt with by the Tribunal or the suspension is successfully appealed. Bearing in mind that it is the Administrative Decisions Tribunal[24] that is the final decision maker.
[24] This Tribunal is now known as the Civil and Administrative Tribunal.
It should not be lost sight of that the process in these matters under the TAS Act is different. The Respondent Board makes its decision which has finality to it, subject to the exercise of a right of review by the Applicants in this Tribunal. It is not a temporary (or emergency) measure pending a final hearing and determination. If the right of review is exercised by an applicant from a decision of the Respondent, the Tribunal may exercise the discretion conferred on it by section 41 (2) of the AAT Act and grant a stay if it forms the required opinion that it is desirable to do so. If the right of review is not exercised, the decision has finality to it.
The Court in Dennis’s case considered that two matters which are relevant in in reaching a decision to suspend a practitioner’s certificate under section 548 (1) of the LPA.
Firstly, the available material must demonstrate that the continued holding of a practising certificate by the practitioner pending the complaint’s determination presents such an unacceptable risk to the clients, the public generally or the administration of justice, that it is necessary that their certificate be suspended. Secondly, the use of the word “necessary” before the term “public interest” in section 548 (1) imposes a high threshold to cross by the Law Society in reaching a decision to exercise the power of suspension. Indeed, it was described as requiring “a high level of persuasion”. This language is considerably different from section 41 (2) of the AAT Act. It is an approach that has no application in these circumstances.
Hoben CJ at CL in Dennis’s case found that there was no evidence before the Court to indicate a risk to clients, or to the public generally, or to the administration of justice. Nothing was put to the Court to indicate the need for such an “emergency” measure as the suspension of the solicitor’s practicing certificate and the appointment of a manager. In the particular circumstances of that case, he was not persuaded that the conduct of the solicitor was “of such seriousness” as to justify such a draconian step. The facts in these applications are different. There is evidence before the Tribunal which remained unchallenged which was relied on by the Respondent to make the reviewable decisions.
In terms of the breach of the undertakings given in proceeding No. 2019/5061 the explanation given by Mr McGuid in his affidavit was relied upon. Concerning the breaches of the undertaking, counsel for the Applicants developed an argument that if those breaches were that serious the Respondent should have made an application to
Senior Member Poljak to have the stay order revoked. By reason of not doing so he contended that in making the reviewable decisions the Respondent is using another means of terminating the Applicants’ registration as tax agents. The Tribunal cannot accept this contention. Once Mr
McGuid’s registration had been terminated the effect on the Applicants was immediate. No steps were taken by them to address the predicament that they were in, bearing in mind that he has as their sole director been aware of the Respondent’s findings that he had ceased to be a fit and proper person since 4 March 2020.

The Respondent’s actions in making the reviewable decisions were not as contended by the Applicants, “another way to get rid of him” but a proper exercise of the powers vested in it as the regulator under the provisions of the TAS Act charged with protecting the interests of consumers using the services of registered tax agents.
The Respondent in its submissions concerning this factor reiterated the evidence against the Applicants and their sole director. Further support to this contention was given to the lack of contrition and failure to appreciate the significance of his conduct by Mr McGuid, sole director, the driving force of the Applicants.
Protection of the public and community confidence in tax agents as a fundamental concern was similarly pressed by the Respondent. Professional standards and ethical conduct on the part of registered tax agents was also reiterated. The repeated failures of Mr McGuid to achieve those standards and provide competent services should be borne in mind.
There was a brief statistical analysis offered by the Respondent. The failures, as it described, in competent practice affected 82 clients, 26 of those clients had been audited by the ATO and all of them were subject to amended assessments of tax totalling $284,936.17 and assessments of shortfall penalties totalling $74,984.11.
Reference was also made to what was described as his escalating unprofessional and threatening responses to officers of the ATO and the Respondent.
The Respondent states that acceptance of the new clients contrary to the undertaking given to the Tribunal compounded the conduct of Mr McGuid, exhibited in his more recent dealings with both the ATO and offices of the Respondent in the somewhat bizarre correspondence emanating from him and referred to previously. Collectively this propensity or attitude, it contends, demonstrates that the conditional stay if granted to the Applicants is unlikely to or may not afford sufficient protection to the public. Preserving public confidence in registered tax agents and the authority of the Tribunal collectively weigh against the Applicants.
Another public interest consideration relied on by the Respondent arose from its regulatory functions conferred upon it by the TAS Act. It submitted that, having concluded that the Applicants’ sole director is not a fit and proper person for the purposes of registration as a tax agent, is itself a public interest consideration which weighs against granting the stay order sought.
Much of the public interest impact or considerations have to some significant extent been considered earlier in these reasons. The public interest objects of the TAS Act and the consideration of them earlier in these reasons are referred to and repeated. The object that tax agent services are provided to the public in accordance with appropriate standards of professional and ethical conduct cannot be understated. Compliance with the Code by registered tax agents must be rigorously enforced.
The level of protection offered by the existing arrangements both by way of the interim stay in these proceedings and in the other proceeding are acknowledged.
Notwithstanding the level of protection so offered by the proposals suggested, the cumulative effect of the actions by Mr McGuid which led to the determination that he was not a fit and proper person to be registered as a tax agent raise real concern in terms of public interest considerations. The need to protect consumers and users of tax agent services given its primacy, tends to outweigh the other considerations relied upon by the Applicants.
Perhaps, if the conduct under scrutiny had not been over such a comparatively longer time span, had been of less frequency, with a much lower cost to the revenue and significantly fewer penalties imposed on their clients caused by his breaches of his professional obligations and the Code it could be legitimately said that the public interest impact was lower and did not outweigh the considerations relied on by the Applicants. However, this is not the case. These matters are also, as contended by the Respondent, exacerbated by the conduct of Mr McGuid in his dealings with both the ATO and the Respondent. Even though he is the sole director of the Applicants this is of concern.
In this instance, the Tribunal also finds attractive the contention of the Respondent that public interest considerations are a factor in favour of denying the stay application. There is a public interest in seeing a regulator such as the Respondent Board protecting consumers and users as efficiently and effectively as possible. This approach does not derogate from the rights of review contained in the TAS Act that are open to affected parties such as the Applicants. In the event that their applications are successful, naturally they are entitled to resume practice as tax agents as they have done for some time.
For these reasons overall, the Tribunal concludes that public interest considerations favour refusing the application for a stay.
THE CONSEQUENCES FOR THE RESPONDENT IF A STAY IS GRANTED.
The Applicants did not advance any arguments concerning this factor.
The Respondent, whilst acknowledging what it described as (and the Tribunal agrees) the undoubted width of the stay power under section 41 (2) of the AAT Act, it contends that this factor should be taken into account against the Applicant.
The grounds relied upon are that if a stay is granted as sought by the Applicants it will impose upon the Respondent as regulator a greater compliance burden. The elements of this greater compliance burden it contends, will be the obligation to continue to monitor and police the Applicants’ observance of any conditions which the Tribunal would invariably impose as part of the stay order. It also highlights the Respondent’s limited resources as a factor in support of this contention. However, no evidence was adduced to support this assertion of the Respondent being so constrained.
The Respondent contends that the previous breach of the stay conditions which have been referred to earlier in these reasons when the undertaking given by S & T to the Tribunal in application No. 2019/5061 was breached are relevant to a consideration of this factor. Presumably, because it will require the Respondent Regulator to maintain a heightened level of scrutiny of the Applicants in the event that the stay is granted on terms, and that it is a factor that would affect the Tribunal’s confidence that any stay conditions will be adhered to.
Whilst the Tribunal acknowledges the submissions made by the Respondent concerning this factor and the force of them, it does not consider it to be in this case determinative.
A regulator such as the Respondent in the course of discharging the functions cast upon it by its enabling statute will regularly have to monitor the compliance by parties such as the Applicants with all manner of obligations and where appropriate, conditions including those such as might be imposed by the Tribunal in a matter such as this. It is one of the functions that it must attend to.
WILL THE APPLICATIONS FOR A REVIEW BE RENDERED NUGATORY IF THE STAY APPLICATION IS REFUSED?

The Applicants contend if the stay as sought by them is not granted the application for review would be rendered nugatory.
Several grounds are advanced in support of this contention. Also, from the nature of the Applicant’s submissions and the material contained in the McGuid affidavit several other grounds are inferred.
The Applicant’s counsel contended in submissions that these applications would be rendered nugatory if the stay was not granted because of the un-resolved status of the two existing proceedings that have been previously referred to (Nos. 2019/5061 and 2020/2219). Whilst there is the same or similar subject matter arising in these applications and the other two unresolved matters it does not mean that the failure of this stay application would render these proceedings nugatory or otherwise pointless. If a director is appointed to the Applicants who is a registered tax agent, as acknowledged by counsel for the Respondent, it would be a practical way to deal with the matter. They could continue in business and at the same time prosecute these applications with full force and effect. If they do not appoint a fresh corrector who is a registered tax agent, it does not prevent them from still prosecuting their applications. The only consequence will be that pending the hearing and determination of these applications they will not be able to carry on business as tax items. The choice is theirs.
As also recorded above, the contention that the Applicants will have to cease trading is also relied upon. It was not contended on behalf of the Applicants that it would lead to them becoming insolvent and potentially being placed into administration or liquidation.
No financial statements or records were in the evidence before the Tribunal which might have enabled it to have made some form of assessment concerning this possibility.
Clearly, if the stay order is not granted and the Applicants do not appoint a fresh director who is a registered tax agent, they will suffer a loss of income at least until the hearing and determination of these applications, assuming they are successful. The Tribunal has addressed the prospects of success earlier and notes that they are not very good.
The other matters touched on in a consideration of the consequences for the applicants if the stay order was refused are also relevant and have been taken into account by the Tribunal. This includes the obvious inconvenience to clients together with the effect on the Applicants’ employees. However, this is a factor that should have been considered by the Applicants through their sole director when they engaged in some of the conduct that has been complained of. It is also a risk of doing business in an environment where there is strict professional regulation. That regime of regulations there for a purpose. It may be from time to time parties will potentially face disruptions to the business by reason of the regulatory function of an agency such as the Respondent which is charged with exercising such functions. Overall, the Tribunal considers that this factor does not carry with it such importance or weight as the Applicants contend in reaching the requisite opinion that it is desirable to grant a stay. It is a factor or an obstacle that can be overcome if the Applicants choose.
CONCLUSION.
The consideration above of the factors by the Tribunal do not lead it to reach an opinion that it is desirable, after taking into account the interests of any persons who may be affected by the review, to make orders staying, or otherwise affecting the operation or implementation of the reviewable decisions.
The findings made by the Respondent Board concerning the conduct of the Applicants and their sole director, which have been extensively considered in the course of these reasons together with the other matters referred to, demonstrate that the public interest considerations must prevail.
Accordingly, the application for a stay is refused. This will mean that the interim stay order granted by Deputy President McCabe on 27 July 2020 will be discharged.
The Applicant’s counsel in oral submissions did submit that if the Tribunal is not prepared to grant a stay that in the interests of making other arrangements that would follow the refusal that there be an “extension” of time for implementation of the decision and discharge of Deputy President McCabe’s interim stay order.
Given the potential effect that the refusal to grant the stay application will have on employees and clients of the Applicants, (alternatively to give the Applicants the opportunity to appoint another director who is a registered tax agent) the Tribunal is prepared to allow 14 days between the handing down of these reasons and the discharge of the interim stay order made on 27 July 2020.
Accordingly, the Tribunal orders that the interim stay order made on 27 July 2020 be discharged on 28 September 2020.

117.   I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

118.

...........................[sgd]............................................
Associate
Dated:           14 September 2020

Date of hearing: 21 August 2020

Counsel for the Applicant:

Solicitors for the Applicant:

Mr Jim Johnson

The Law Offices of Dr. Dion Accoto

Counsel for the Respondent: Mr Luke Livingston