"SAAF" and Tax Agents' Board of South Australia
[2007] AATA 1335
•18 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1335
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200500321
GENERAL ADMINISTRATIVE DIVISION ) Re "SAAF" Applicant
And
TAX AGENTS' BOARD OF SOUTH AUSTRALIA
Respondent
DECISION
Tribunal Senior Member R W Dunne Date18 May 2007
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
TAX AGENTS – re-registration denied – whether person “not of good fame, integrity and character” – conviction of a “serious taxation offence” during the previous 5 years – “special circumstances” – whether person “not a fit and proper person” – decision affirmed.
Income Tax Assessment Act 1936 ss 251A, 251BC(1) and (3), 251JC(1) and (2), 251QA(b)
Taxation Administration Act 1953 ss 8A, 8B, 8E
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
McKay v Tax Agents’ Board of Tasmania (1994) 94 ATC 2057
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Beadle and Ors v Director-General of Social Security (1995) 60 ALR 225
Re VBY and Tax Agents’ Board of Victoria [2006] AATA 103
Toohey v Tax Agents’ Board of Victoria [2007] FCA 431
Re Adamec and Tax Agents’ Board of Victoria [2005] AATA 913
Re Reichert and Tax Agents’ Board of New South Wales [2005] AATA 188
Re Tosio and the Tax Agents’ Board of NSW [2005] AATA 1015
Re Marzol and Tax Agents’ Board of Queensland [2007] AATA 1087
Re Stubbings and Tax Agents’ Board of New South Wales [2006] AATA 846
Re McCoy and Tax Agents’ Board of New South Wales [2006] AATA 855
Su v Tax Agents’ Board, South Australia (1982) 61 FLR 1REASONS FOR DECISION
18 May 2007 Senior Member R W Dunne 1. The applicant is an accountant and tax agent practising in Adelaide. On 20 May 2005 or thereabouts he applied for re-registration as a tax agent and on 10 November 2005 the respondent (“Board”) advised him that he would not be re-registered. The applicant has, pursuant to s 251QA(b) of the Income Tax Assessment Act 1936 (“ITAA”), applied to this Tribunal for a review of that decision.
2. The applicant is presently practising. An order to stay the operation of the decision under review was made by the Tribunal, with the consent of the Board, on 5 December 2005. Pursuant to s 43(5C) of the Administrative Appeals Tribunal Act 1975 (“Act”), the operation or implementation of the decision under review is stayed until the appeal period to the Federal Court has expired or the appeal (if any) is determined. The identity of the applicant has been (and is to be) concealed, along with the identity of clients in documents and material before the Tribunal, pursuant to s 35 of the Act.
3. At the hearing, Ms Arlene Macdonald appeared as counsel for the applicant and Ms Katherine Bean appeared as counsel for the respondent. The Tribunal received into evidence the documents lodged pursuant to s 37 of the Act (Exhibit A1) and the applicant’s witness statement dated 16 May 2006 (Exhibit A2).
4. The applicant was first registered as a tax agent on 13 February 1980. He became principal shareholder and director of RSN and on 13 August 1980 was granted registration as nominee of RSN. Due to financial difficulties, in April 1991 the applicant surrendered his tax agent registrations and later entered into voluntary bankruptcy. In April 1993, his bankruptcy was annulled and he was again re-registered as a tax agent on 1 July 1993. He has since applied and been re-registered in 1996, 1999 and 2002.
5. What follows is a chronology of demands, late lodgements and convictions involving the applicant since he was first registered as a tax agent. Business entities with which the applicant was associated are referred to by initials:
Date
Event
9 February 1983
RSN was convicted of three counts of failing to remit tax instalment deductions for July, August and September 1982. At the relevant times, the applicant was the principal shareholder and director of RSN. RSN was fined a total of $535 for the three counts.
11 December 1984
The applicant was convicted, as a director of FPL, of one count for non-lodgement of FPL’s 1983 income tax return. He was fined $40.
6 February 1985
RSN was convicted of two counts for failing to remit tax instalment deductions for June and July 1982. RSN was fined a total of $500 for the two counts.
27 March 1985
The applicant was convicted, as a director of DPL, of three counts for the non-lodgement of DPL’s 1982, 1983 and 1984 income tax returns. He was fined $80, $75 and $70 respectively.
10 March 1988
The applicant was convicted, as a director of BPS, of three counts for the non lodgement of BPS’s 1983, 1984 and 1985 income tax returns. He was fined $250, $700 and $700 respectively.
Date unknown
A demand for lodgement was made in respect of the applicant’s 1988 personal income tax return.
Date unknown
A demand for lodgement was made in respect of the applicant’s 1989 personal income tax return.
6 October 1989
The applicant was convicted of one count under ss 5 and 29B of the Crimes Act 1914 of imposing on the Commonwealth. A conviction was recorded against the applicant. He received a 2 month suspended sentence and was released on a 12 month good behaviour bond of $200.
Date unknown
A demand for lodgement was made in respect of the applicant’s 1990 personal income tax return.
Date unknown
A demand for lodgement was made in respect of the applicant’s 1994 personal income tax return.
Date unknown
A demand for lodgement was made in respect of the applicant’s 1997 personal income tax return.
Date unknown
A demand for lodgement was made in respect of the applicant’s 1999 personal income tax return.
Date unknown
A demand for lodgement was made in respect of the applicant’s 2000 personal income tax return.
Date unknown
A demand for lodgement was made in respect of the 2001 income tax return of AC. The applicant was a director of AC.
Date unknown
A demand for lodgement was made in respect of the applicant’s 2002 personal income tax return.
Date unknown
A demand for lodgement was made in respect of the 2002 income tax return of AC. The applicant was a director of AC.
Date unknown
A demand for lodgement was made in respect of the applicant’s 2003 personal income tax return.
Date unknown
A demand for lodgement was made in respect of the 2003 income tax return of AC. The applicant was a director of AC.
21 March 2003
The applicant was convicted under s 8C(1)(a) of the Taxation Administration Act 1953 (“TAA”) for failing to lodge his 2001 personal tax return. He was fined $150.
3 March 2004
The applicant’s 2002 personal income tax return was lodged.
20 December 2004
The applicant’s 2003 personal income tax return was lodged.
19 May 2005
The applicant’s 2004 personal income tax return was lodged.
20 May 2005
The applicant’s June 2004 Business Activity Statement (“BAS”), due on 25 August 2004, was lodged.
The applicant’s September 2004 BAS, due on 25 November 2004, was lodged.
The applicant’s December 2004 BAS, due on 28 February 2005, was lodged.
8 July 2005
The applicant was convicted for failing to lodge his June 2004, September 2004 and December 2004 BAS. He was fined $2,600, plus costs.
11 August 2005
The applicant’s AE Trust 2002, 2003, 2004 and 2005 income tax returns were lodged.
21 September 2005
The applicant’s June 2005 BAS, due on 11 August 2005, was lodged.
11 October 2005
The applicant’s SS Trust 1998, 1999, 2000, 2001, 2002, 2003 and 2004 income tax returns were lodged.
The 2004 income tax return for AC was lodged.
31 October 2005
The applicant’s 2005 personal income tax return was lodged.
8 November 2005
The applicant’s SI Unit Trust 2000, 2001, 2002, 2003 and 2004 income tax returns were lodged.
8 May 2006
The applicant’s SI Unit Trust 2005 income tax return was lodged.
The 2005 income tax return for AC was lodged.
15 May 2006
The applicant’s SS Trust 2005 income tax return was lodged.
The applicant’s SI Unit Trust 1996 income tax return was lodged.
The 2000, 2001, 2002 and 2003 income tax returns for AC were lodged.
issues
6. The issues before the Tribunal are as follows:
(a) whether the applicant committed and has been convicted of a serious taxation offence, as defined in s 251A of the ITAA, during the previous 5 years;
(b) whether special circumstances existed such that the conviction should be disregarded under s 251BC(3)(c) of the ITAA;
(c) whether the applicant is not of “good fame, integrity and character” within the meaning of s 251BC(1)(d) of the ITAA; and
(d) whether the applicant is not “a fit and proper person to prepare income tax returns and transact business of behalf of taxpayers in income tax matters” within the meaning of s 251BC(1) of the ITAA.
legislation
7. The following legislation is relevant to a consideration of the present application:
Taxation Administration Act 1953
“8A Interpretation
(1) In this Part, unless the contrary intention appears:
…
taxation offence means:
(a) an offence against a taxation law; or
(b) an offence against:
(i) section 6 of the Crimes Act 1914; or
(ii) section 11.1, 11.4 or 11.5 of the Criminal Code;
being an offence that relates to an offence against a taxation law.
…
8BInterpretation
(1) A reference in this Subdivision to a relevant offence is a reference to:
(a)an offence against section 8C, subsection 8D(1) or (2) or section 8H; or
(b) an offence against:
(i) section 6 of the Crimes Act 1914; or
(ii) section 11.1, 11.4 or 11.5 of the Criminal Code;
being an offence that relates to an offence of a kind referred to in paragraph (a) of this subsection.
(2)For the purposes of this Subdivision, a person who is convicted of an offence against section 8C or subsection 8D(1) or (2) (in this subsection referred to as the subsequent offence) shall be treated as having been previously convicted of a relevant offence (in this subsection referred to as the earlier offence) if:
…
(b)the person is convicted of the earlier offence and the subsequent offence before the same court at the same sitting and the earlier offence was committed:
(i)at a time or on a day earlier than, but not more than 5 years earlier than, the subsequent offence; or
…
…
8C Failure to comply with requirements under taxation law
(1)A person who refuses or fails, when and as required under or pursuant to a taxation law to do so:
(a)to furnish an approved form or any information to the Commissioner or another person; or
…
Is guilty of an offence.
8EPenalties for failure to comply with requirements under taxation law
(1)Subject to subsections (2) and (3), an offence against section 8C or subsection 8D(1) or (2) is punishable on conviction by a fine not exceeding $2,000.
(2) Subject to subsection (3), where:
(a)a person is convicted of an offence against section 8C or subsection 8D(1) or (2); and
(b)the court before which the person is convicted is satisfied that the person has previously been convicted of a relevant offence;
the penalty that the court may impose in respect of the first-mentioned offence is a fine not exceeding $4,000.
…”
Income Tax Assessment Act 1936
“251A Interpretation
serious taxation offence means:
…
(c) an offence that is:
(i)a taxation offence within the meaning of Part III of the Taxation Administration Act 1953; and
(ii) punishable on conviction by either or both of the following:
(A) a fine exceeding $2,000;
(B) imprisonment.
…
251BC Fit and proper persons to prepare income tax returns
(1)Without limiting the generality of an expression used in this Part, but subject to this section, a person is not a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters, as at a particular time, if:
…
(d)the person is not of good fame, integrity and character;
(e)the person has been convicted of a serious taxation offence during the previous 5 years; or
…
(2)Nothing in paragraph (1)(e) or (f) limits the generality of paragraph (1)(d).
(3)Where:
(a)a Board is required, in considering an application for:
(i)re-registration as a tax agent; or
…;
to decide whether the Board is satisfied that a particular person is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters;
…
(c)the Board is satisfied that, because of special circumstances:
(i)a conviction of the person;
(ii)the doing of an act or thing by the person; or
(iii)an omission of the person;
should be disregarded;
the Board may, in making the decision referred to in paragraph (a), disregard the conviction, the doing of the act or thing or the omission, as the case requires.
…
251JC Re-registration of tax agents
(1)The Board shall re-register the applicant as a tax agent if the applicant satisfies the Board that:
(a) if the applicant is a natural person:
(i)the applicant is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters; and
…
(2)The Board shall refuse to re-register the applicant in any other case.
…”
background and evidence
8. The applicant was, at the date of the hearing, 53 years of age, having commenced practice in July 1980 with the purchase of an existing accounting business. Since then, he has conducted his accounting, financial and business planning business through different entities which he controls. He has operated his taxation and general accounting business under his own name since September 2003. Other business and service entities (“linked entities”) are operated through companies (such as the financial planning business operating through AC) and trusts. There are five staff employed in the applicant’s businesses, namely:
·a chartered accountant with clients for whom he is responsible to complete quarterly BAS and financial statements, income tax returns and other regulatory returns;
·a financial planner acting as an authorised representative for AC;
·a book-keeper who also has clients for whom she is responsible to complete quarterly BAS, financial statements, income tax returns and other regulatory returns;
·a computer systems operator (“JF”) who assists clients with computer issues and is also a junior book-keeper ; and
·a receptionist, who is a junior book-keeper.
9. Apart from getting in the work, through meetings, client attendances and the like, the applicant would attend to the more general accounting and administrative requirements of his business. In his witness statement, he describes himself as the “front man” for his business and he and his staff work as a team in dealing with normal accounting work, taxation work, computer support and training, although the fees for the work performed are charged to clients by the relevant business or linked entity. Irrespective of the age and experience of his staff, the applicant has had to maintain varying degrees of supervision to ensure that the clients’ work has been performed correctly the first time and to reduce the risk of professional negligence (Exhibit A2, paragraph 19). About 80 percent of his present clients have been with him since early 1980 and early 1990. The applicant’s staff prepare clients’ BAS, financial statements and taxation returns, which are then reviewed by the applicant and forwarded to the clients. The applicant has provided his own services to approximately 30 clients (or family groups) and 20 of them have comprised the hub of his client base. Some of the clients are small to medium sized, whereas others are relatively large businesses employing a number of people. Amongst these 30 clients, the entities involved have comprised 20 or 30 taxable companies with 80-odd trusts, 20-odd self-managed superannuation funds and approximately 93 individuals. He would meet with, advise and act for these clients in relation to their affairs, including the sale and purchase of businesses and other properties, the preparation of cash flow analyses and consultation on finance matters and investments.
10. Following his re-registration as a tax agent in 1993, the applicant started again in practice in September 1993. With the advent of GST in July 2000, his general workload increased significantly. He found that he was unable to balance his statutory obligations, to lodge taxation returns and pay taxes on time, with the needs of his clients. To overcome these difficulties, he developed checklists for his clients and educated them on their use. He also encouraged his clients to use particular accounting packages which assisted in the preparation of financial statements and income tax returns. By 2004/2005, the demands of his practice had settled down, but he still had a backlog of educating clients in the use of the new systems. In March 2004, JF started looking after the applicant’s personal accounting and taxation affairs and the affairs of his linked entities. JF was aware of the need to lodge the applicant’s BAS for June 2004, September 2004 and December 2004 by their due dates. However, because of his particular diligence, lodgement of these BAS was delayed, so that JF could be satisfied with the correctness of what was contained in them. The applicant was aware that the BAS were going to be lodged late and accepted this.
11. In the two years leading up to June 2004, the applicant’s personal workload also increased considerably. Two major issues occurred involving large clients in the potato industry. One was a new potato growing client and the other an existing potato packing/growing client. Amongst other things, the applicant’s additional work for these clients involved bank refinancing for the potato growing client and a buy-out by the potato packing client of the potato growing client’s business. At the same time, the potato growing client was involved in the purchase of a winery and a motel. The purchase of the winery by the potato growing client settled in December 2003, but the land sale by the potato growing client to the potato packing client did not settle until March 2004. In relation to these transactions, the applicant was involved in attending board meetings, in preparing cash flows and financial statements and in generally advising the clients.
12. The applicant spent roughly 5-6 hours per week on work for his potato packing client during the period leading up to June 2004. In the period thereafter until mid-2005, the applicant spent about 15 hours a week doing work for the client, which was made up of approximately 15-18 separate entities. However, in June 2004 potato prices dropped and the applicant was required to revamp all of the cash flows he had prepared for the client, based upon new margins. The applicant also undertook other work in relation to a problem with a water filtration company that serviced the client. This work occupied approximately 40 hours of the applicant’s time, whilst the revamping of the cash flows following the drop in potato prices occupied approximately 60-70 hours of the applicant’s time, over a period of about 2 months. In addition, during the 2004/2005 period, the applicant spent around another 50 hours on work for the client and its entities.
13. Apart from the work for his potato packing client, the applicant estimated that the amount of work performed for certain other clients during the 2004/2005 period was as follows:
(a)Potato growing client – approximately 90-100 hours.
(b) Hotel industry client – approximately 125 hours.
(c) Abalone diver client – approximately 30 hours.
(d) New client (financial problems) – approximately 45 hours.
(e) Queensland client – approximately 100 hours.
(f) Boat building client – approximately 36-37 hours.
(g) Coffee business client – approximately 60 hours.
(h) IT client – approximately 8 hours.
previous reviews of applicant’s tax agent registration
14. The applicant’s tax agent registration has been reviewed by the Board on several previous occasions, they being:
(a) In 1988 following the non-disclosure of his 1984 and 1985 convictions as a director of two of his linked entities. The applicant was notified of the review by the Board by letter dated 19 July 1988 (Exhibit A1, T7 at pages 15-16). In a letter to the Board dated 9 August 1988 (Exhibit A1, T8 at pages 17-18), the applicant described the non-disclosure as a “regrettable oversight” and “not a deliberate omission but arose from my failure to fully read and understand the question that was being asked of me”.
(b) In 1990 following his conviction for imposing on the Commonwealth. The applicant was notified of the review by letter dated 17 April 1990 (Exhibit A1, T5 at page 10). At its meeting on 11 April 1991, the Board was informed by the applicant’s representative that the applicant was surrendering his individual tax agents’ registration, along with the registrations of two of his linked entities.
(c) The applicant was advised, by letter from the Board dated 5 July 1993, that he had been re-registered with effect from 1 July 1993 (Exhibit A1, T26 at pages 75-76).
(d) In 1999 following approval of his application for re-registration. The applicant was notified by letter dated 29 July 1999 (Exhibit A1, T31 at page 84) of the Board’s concern regarding the demands issued for lodgement of his 1994 and 1997 personal income tax returns and that his 1998 return had not been lodged.
(e) In 2002 following approval of his application for re-registration. The applicant was notified by letter dated 6 August 2002 (Exhibit A1, T33 at page 88) of the Board’s grave concern that, notwithstanding the Board’s letter of 29 July 1999, demands or reminders had since been issued in respect of his 1999, 2000 and 2001 personal income tax returns and that his 2000 and 2001 returns had still not been lodged.
consideration
Serious Taxation Offence
15. From the chronology in paragraph 5 of these reasons, on 21 March 2003 the applicant was convicted under s 8C(1)(a) of the TAA for failing to lodge his 2001 personal income tax return. Then, on 8 July 2005, he was convicted for failing to lodge three BAS for the periods ending 30 June 2004, 30 September 2004 and 31 December 2004 respectively. By virtue of s 8E(2) of the TAA, the second and third BAS offences were punishable by a fine exceeding $2,000 and so are serious taxation offences as defined in s 251A of the ITAA. It was also submitted by Ms Bean that, because of the offence and conviction on 21 March 2003, all three of the offences and convictions on 8 July 2005 constituted serious taxation offences. Given the circumstances, it is unnecessary for the Tribunal to decide this question. In any event, it was clear at the hearing that it was accepted by the applicant that he had been convicted of a serious taxation offence during the previous five years.
The Decision Under Review
16. The Board resolved at a meeting on 4 November 2005 to refuse the applicant’s application for re-registration as a tax agent. The reasons for that decision, which are found in Exhibit A1, T3 at page 5, are as follows:
“… because you have committed a serious taxation offence within the last 5 years. A serious taxation offence is defined in section 251A of the Income Tax Assessment Act (1936) (ITAA) as being ‘punishable…by’ and is not limited to ‘punished’ by a fine exceeding $2000 as argued in your response.
A serious taxation offence may only be disregarded when considering an application for re-registration of a tax agent, by exercising the discretion provided under section 251BC(3) ITAA. This provision states the conviction may be disregarded only where there are ‘special circumstances’. The Board considered that the circumstances as detailed in your response did not amount to the required ‘special circumstances’ for the non lodgement of the returns which resulted in the most recent prosecution.
…”
17. In the course of her opening, Ms Macdonald referred to the fact that the Board, in its refusal letter to the applicant, did not refer to the question of whether he was “not of good fame, integrity and character” or was “not a fit and proper person”, both within the meaning of s 251BC(1). The Board’s decision did not refer to these matters and it did not appear that they were part of the Board’s decision-making process. Nevertheless, Ms Macdonald properly recognised that these were matters before the Tribunal to be decided on the material before it (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60). The issue of the Tribunal’s jurisdiction was also addressed by Ms Bean. It is clear, from sub-paragraph 251JC(1)(a)(i), when read with s 251BC(1), that the question of fitness and properness is not limited to the matters outlined in paragraphs (a) to (f) (inclusive) of s 251BC(1). If one of the matters referred to in paragraphs (a) to (f) is established, subject to the exercise of the discretion in s 251BC(3), it follows that the person is not a fit and proper person. However, a consideration of these matters is not exhaustive of all the matters that may be considered in determining whether a person is fit and proper. The wider consideration of fitness and properness is possible from the wording of s 251BC(1). As was stated by Deputy President Dr P Gerber in McKay v Tax Agents’ Board of Tasmania (1994) 94 ATC 2057 at paragraph 35:
“I am satisfied that the effect of s 251BC, and particularly sub-s 251BC(1), in relation to sub-s 251JC(1) is that I am able to consider a multiplicity of factors (it being, however, unwise to attempt to define the factors which may be taken into account) when deciding whether the applicant is ‘a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters’; not being bound merely to consider the various factors in sub-s 251BC(1). However, I am bound to consider the criteria in sub-s 251BC(1) for the reason that if any of them are made out (subject to the discretion contained in sub-s 251BC(3)) I am compelled to find that the applicant is not such a fit and proper person. In other words, if I were to find, for example, that the applicant was ‘not of good fame, integrity and character’, it must be concluded that the applicant is not ‘a fit and proper person (etc)’ for the purposes of sub-s 251JC(1).”
Special Circumstances
18. In the present case, as was suggested by both Ms Macdonald and Ms Bean, the logical place to start is whether “special circumstances” exist which are such as to warrant the serious taxation offence(s) being disregarded by the Tribunal in determining whether the applicant is a fit and proper person to be a tax agent. As was submitted by both counsel and accepted by the Tribunal, there is only a single discretion in s 251BC(3)(c). Where special circumstances are established, the conviction of the person is automatically disregarded in deciding whether to re-register the person as a tax agent. There is no scope in the operation of the section for the exercise of any further discretion through the use of the words “the Board may” at the end of s 251BC(3). As was also submitted by both counsel and accepted by the Tribunal, the test of special circumstances must be applied at the time of the relevant conviction(s) referred to s 251BC(1)(e).
19. Initially, it was Ms Macdonald’s submission that there was no evidence in the cases of what were the “usual circumstances” of a tax agent who was convicted of a serious taxation offence, and that the bar at which “special circumstances” had been set was too high and, in most tax agent cases, could never be achieved. She put to the Tribunal that assumptions were made that work pressures, health and other life experiences were usual and could not amount to special circumstances. Certainly, cases dealing with s 251BC(3), often decided by the Federal Court and by Deputy Presidents and Senior Members of this Tribunal have found, on their own particular facts, that family sickness, bereavement, domestic responsibilities, fluctuating and heavy work and client commitments, maintaining qualifications and professional development and failed business ventures do not amount to “special circumstances”. However, as Ms Bean submitted (and the Tribunal accepts), in the context of s 251BC(1)(e), there is a strong presumption that conviction of a serious taxation offence is sufficient to disqualify a person from being a fit and proper person, and for this reason the “special circumstances” bar is a very high one.
20. Although the term “special circumstances” does not have a statutory definition, it has been considered by the Tribunal and the Federal Court in a number of decided cases. In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at page 3, the Tribunal, comprising Toohey J (Presidential Member), Member I A Wilkins and Member Dr J G Billings) said:
“An expression such as ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.”
21. On appeal, in Beadle and Ors v Director-General of Social Security (1995) 60 ALR 225, the Full Federal Court said [at 228]:
“… It would depend upon the circumstances of the particular case whether these constituted special circumstances. We do not think it is possible to lay down precise limits or precise rules. The matter is one for the Director-General bearing in mind the purpose for which the power is given. The phrase ‘special circumstances’, although lacking precision, is sufficiently understood in our view not to require judicial gloss.
…”
22. In the recent decision in Re VBY and Tax Agents’ Board of Victoria [2006] AATA 103, Senior Member Handley referred to the decision of Kiefel J in Groth v Secretary, Department of Social Security (1995) 40 ADL 541 and examined a number of Tribunal decisions dealing with the issue of “special circumstances”. Paragraphs 49-55 of his reasons are worthwhile repeating here:
“49. In Groth v Secretary, Department of Social Security, Federal Court, 27 September 1995, 989/95, Kiefel J considered the Tribunal decisions in Re Beadle and also in Secretary Department of Social Security v Hulls (1991) 22 ALD 570, Re Ivovic and Director-General of Social Services (1981) 3 ALN 61, Trimboli v Secretary, Department of Social Security (1989) 86 ALR 64 and Secretary, Department of Social Security v Smith (1991) 30 FCR 56. Ultimately Her Honour concluded (paragraph 12):
‘The phrase "special circumstances", it has been said, although imprecise is sufficiently understood not to require judicial gloss: Beadle's case (229), and for present purposes it is sufficient to observe that it would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary. The enquiry I have referred to would involve considering what would be the effect, if the provision in question or the principle of liability it creates, is applied. That question arose in Smith and in Ivovic's case. That may not be the only question which will arise in determining, in a particular case, whether special circumstances exist. In the context of some discretionary provisions, for example one which provides for a longer period of time to be fixed in "special circumstances" as in Beadle's case, it may be relevant to look to how a person comes to require the exercise of the discretion and therefore to the events preceding the arbitrary provision coming into effect.’
50. That analysis was followed by Her Honour in Secretary, Department of Family and Community Services v Chamberlain [2002] FCA 67 at paragraph 19. Additionally Her Honour expanded the description of ‘unfair, unintended or unjust’ and referred also to whether a strict application of legislation could result in an ‘inappropriate’ outcome when considering whether a person’s circumstances are special (refer paragraph 20).
51. By way of example, there are two recent decisions of the Tribunal where the concept of ‘special circumstances’ has been considered in the context of the refusal to re-register a tax agent.
52. In Reichert, the Tribunal found that the agent during the period of 15 years when he did not lodge his own personal returns had been engaged in a small part time practice of 10 – 20 clients but where he had otherwise been in salaried employment in industry working long hours and was exposed to frequent travel. He had bought and sold his domestic premises, was the coach of a soccer team, had assisted in the running of a farm owned by his parents, he frequently visited his mother who was ill in Newcastle and had put his own affairs ‘on the back burner’. The Tribunal decided that none of the above events explained the delay in the lodging of returns and his personal circumstances were not exceptional, unusual or uncommon and were circumstances experienced by many other persons.
53. In Re Adamec and Tax Agents’ Board of Victoria [2005] AATA 913, the Tribunal considered the circumstances of an agent who had been convicted for failing to lodge personal returns for three consecutive years and who had been the subject of complaint by clients. The Tribunal found that the applicant had attended with his wife when she was diagnosed with cancer and had also assisted his mother-in-law when she was diagnosed with cancer. During this time the applicant’s father-in-law suffered dementia. There were lengthy periods when the applicant was required to care for his infant daughter. He was engaged in a legal dispute with his partners concerning his accounting practice and legal proceedings were instituted. He suffered turmoil with the introduction of GST and staff resigned. He suffered a ‘crash’ of his computer and lost client records. He also entered into a floristry business which exposed him to greater responsibility and said in evidence that he was ‘stressed to the max’. Evidence was heard by the Tribunal from a treating psychologist who diagnosed PTSD, grief and depression. The Tribunal found that the applicant had been subject to ‘serious stresses’ in both his domestic and business affairs over the past 10 years, many of them beyond his own control. The Tribunal referred to the decision in Re Beadle and also in Reichert and concluded (at paragraph 70):
‘I find it difficult to accept, that these events are sufficiently unusual as to amount to "special circumstances" as that term is used in the Act. Family sickness, bereavement, domestic responsibilities, personality clashes in the workplace, fluctuating work loads and failed business ventures are not uncommon. . . . but this does not alter the fact that such events are prone to occur to anyone.’
54. Contrast the above decisions with a decision of the Tribunal (involving the exercise of a discretion in favour of the tax agent) in Re Chapman and Tax Agents’ Board of South Australia (1984) 15 ATR 691. In that application the applicant was a registered tax agent and had been convicted for his failure to lodge taxation returns for companies over which he was the director. The applicant had also been convicted for failing to lodge four income tax returns of his own. It would also appear from the decision that the applicant had failed to disclose those convictions in his applications for renewal of registration as a tax agent. The Tribunal decided that the conduct of the applicant did not adversely or seriously affect his competence as a tax agent and there was no evidence that he had been less than competent in managing his clients’ affairs. The Tribunal decided that the personal circumstances affecting the practice of the applicant had been responsible for the failing to lodge returns, that those personal circumstances were behind him and it was unlikely that he would fail to lodge returns into the future. The Tribunal also acknowledged that the applicant had been foolish in his failure to disclose past convictions. That evidence did not persuade the Tribunal Member to find that he was not a fit and proper person, particularly in the absence of any evidence of complaint by, or neglect of, his clients’ affairs.
55. In Re Tosio and Tax Agents’ Board of New South Wales [2005] AATA 1015, the Tribunal reviewed a decision of the Board which decided to refuse the agent’s application for re-registration as a tax agent. The applicant had been convicted and fined by reason of failing to lodge his own income tax returns for the years 2000 and 2001. By reason of the ‘special circumstances’, as found by the Tribunal, being depressive illness suffered from December 1996, increase in workload by reason of the introduction of the GST, working long hours and working in sole practice, the Tribunal decided that the decision under review should be set aside and the application for re-registration as a tax agent be granted.”
23. The decision in Re VBY was considered, on appeal, in the Federal Court in Toohey v Tax Agents Board of Victoria [2007] FCA 431. There, Middleton J allowed the appeal by Mr Toohey and remitted the matter to a differently constituted Tribunal for reconsideration. Briefly, the learned Judge found that that Tribunal did not address the ultimate issue for consideration and determination (ie whether Mr Toohey was the “prescribed fit and proper person”), but only considered the question of the operation of s 251BC(3). In the course of reaching his decision, he said [at paragraphs 11-13]:
“11 Pursuant to s 251BC(3), in the course of deciding the ultimate issue, certain matters may be disregarded because of special circumstances. Once disregarded, those matters are no longer considered in the enquiry, and then a decision as to whether the applicant is the prescribed fit and proper person is made by the Board. If a conviction, act or omission of the applicant is not disregarded, it will need to be assessed, along with other factors, in order to determine whether the applicant is a fit and proper person if that inquiry can still be made where the disqualifying factors do not apply. It may well be that a particular conviction (other than a disqualifying conviction) is to be taken into account and not ‘disregarded’, but that, for one reason or another, taking into account all the circumstances, the Board may still be satisfied that the applicant is the prescribed fit and proper person. Again, of course, it is clear that if there is a disqualifying factor, there cannot be a finding in favour of the applicant allowing re-registration.
12 The other matter to observe is that the relevant time for the assessment of whether a person is the prescribed fit and proper person, is at the time of the relevant determination. This is made clear by the Act itself, for it is in considering the application that the Board needs to be satisfied that the applicant is the prescribed fit and proper person. I note the Act specifically uses the present tense. There is no express or implied legislative indication which provides for the assessment of the facts at any other particular date. I refer also to A Solicitor v Council of the Law Society (NSW) (2004) 216 CLR 253 at 268.
13 In view of s 43(1) of the AAT Act, where the matter comes before the Tribunal, the Tribunal must be satisfied that the applicant is the prescribed fit and proper person at the time of the Tribunal’s determination. In reaching its decision, the Tribunal should consider for itself, as though it was performing the function of the relevant decision-maker, whether the applicant has satisfied the Tribunal he or she was the prescribed fit and proper person.”
24. Again, from the chronology in paragraph 5 of these reasons, the applicant was often late in lodging his own personal income tax returns. The particulars of return lodgement demands, which were not challenged by Ms Macdonald, indicate that the applicant was late in lodging his 1988, 1989, 1990, 1994, 1997, 1999, 2000, 2002 and 2003 personal income tax returns. In addition to the reviews referred to in paragraph 14 of these reasons, the Board wrote to the applicant on at least two other occasions (on 22 November 1990 (Exhibit A1, T18 at pages 61-62) and on 21 December 1990 (Exhibit A1, T21 at pages 66-67)) expressing concerns about his fitness and propriety and competence.
25. When the Board wrote to the applicant on 19 July 1988 concerning his failure to declare, in his application for re-registration, details of prior convictions in relation to the affairs of linked entities, the Tribunal noted that his explanation was that his failure had arisen from his failure to fully read and understand the question that was being asked of him. When asked why his 2001 personal income tax return had been lodged late, giving rise to the conviction on 21 March 2003, the applicant said it was because he spent most of his time working on clients’ affairs and because he did not know how to use the computer. When asked why, following earlier warnings from the Board, he had failed to lodge the three BAS, for which he was convicted on 8 July 2005, he appeared to initially blame an ex-employee, but eventually arranged for JF to attend to the lodgements. Then, because of JF’s perhaps over-diligent approach and with the knowledge and acceptance of the applicant that they were overdue, the three BAS were all lodged late (on 20 May 2005).
26. Ms McDonald contended that, in preparing and lodging the overdue BAS, it wasn’t only a matter of time for the applicant. She put to the Tribunal (Transcript, 21 September 2006 at page 105):
“… His head had no room left to deal with the thing he should have dealt with, of course, but the applicant is asking the Tribunal to apply the knowledge of a professional to the fact that these things can overwhelm you and overwhelm you, as such, that although you physically may have time, if you physically do have a spare hour or two, you may need to rest. You may need to breathe air. You may need to be doing something else or you are dealing with your client.”
With respect, the Tribunal is unable to accept counsel’s contention. Previous Tribunals have consistently held that client demands and the fluctuating workloads of tax agents, even if they are seen as “massive, unexpected, unprecedented and extremely complex”, are not, of or by themselves, sufficient to take a case out of the “usual or ordinary case” (see, for example, Re Adamec (infra) at paragraph 70 and Re Reichert and Tax Agents’ Board of New South Wales [2005] AATA 188 at paragraphs 18-19 ). These are events that are prone to occur to any tax agent.
27. The applicant gave evidence about major issues involving two clients in the potato industry that occurred in the two year period prior to 30 June 2004. These issues occupied a considerable amount of the applicant’s time and were relatively complex transactions. The transactions were completed in March 2004. Following completion and in the subsequent 2004/2005 period, the applicant was involved in other transactions for a number of his clients. He gave oral evidence of the amount of time spent by him in the period leading up to 30 June 2004 and in the period thereafter until mid 2005. He also gave oral evidence about the unexpected and complex nature of the work. However, he failed to produce any time records of work performed and gave lengthy (and often irrelevant) oral evidence of the time spent (which was largely estimated) on client work during the 2004/2005 period. In her submissions, Ms Macdonald described the additional work undertaken by the applicant as “massive, unexpected, unprecedented, and extremely complex and could not be delegated”. However, apart from the applicant’s own statements, there was no independent supporting or time recorded evidence of these matters.
28. It was also Ms Macdonald’s submission that the applicant’s default in failing to lodge his quarterly BAS arose over a relatively short period. The tax agent re-registration legislation, in its current form, had been introduced in 1988, at a time when a “serious taxation offence” concerned the failure to lodge annual income tax returns, rather than the now more frequent quarterly BAS. Although Ms Macdonald contended that this was a factor that should be taken into account when looking at the issue of special circumstances, the Tribunal is not satisfied that s 251BC(1) should be given any wider construction than that which presently and literally appears and which has remained unchanged since the introduction of the BAS obligations after 1 July 2000.
29. In Re VBY (supra), in considering the issue of “special circumstances”, Senior Member Handley engaged in a useful balancing exercise. At paragraph 65 of his decision, he said:
“The exercise of considering special circumstances involves the weighing up of the events which on the one hand have given rise to the alleged conduct causing the Board to regard the applicant as not being fit and proper and on the other hand events or circumstances either explain that conduct or otherwise permitting a finding to be made that the applicant is in fact a person who is fit and proper.”
In her written submissions furnished to the Tribunal, Ms Macdonald summarised the “positive” circumstances of the applicant. In addition to the “massive, unexpected, unprecedented and extremely complex work that could not be delegated”, the circumstances were:
· he had a considerably more difficult, extraordinary complex workload;
· he had external pressures to keep up with changes in the tax law;
· from mid June 2004 to May 2005, he had been overwhelmed with the unprecedented magnitude and complexity of additional work required to be done by him personally; and
· he had entrusted his personal tax affairs to an employee who was working on them.
Ms Macdonald also asked the Tribunal to note a number of the applicant’s “praiseworthy” acts. The Tribunal has done so, but does not consider it necessary to repeat them here.
30. In summary, the following circumstances are on the “negative” side:
· the convictions involving the applicant on 11 December 1984, 27 March 1985, 10 March 1988, 6 October 1989, 21 March 2003 and 8 July 2005 (see chronology at paragraph 5 of these reasons);
· the demands for lodgment made in respect of the applicant’s 1988-1990, 1994, 1997, 1999-2000, 2002 and 2003 personal income tax returns (see chronology at paragraph 5 of these reasons);
· the demands for lodgment in respect of the 2001, 2002 and 2003 income tax returns of AC (see chronology at paragraph 5 of these reasons);
· the Board’s review letters to the applicant on 19 July 1988, 17 April 1990, 29 July 1999 and 6 August 2002 (see paragraph 14 of these reasons);
· the Board’s fitness and propriety and competence letters to the applicant on 22 November 1990 and 21 December 1990 (see paragraph 24 of these reasons).
31. The Tribunal has given long and mature consideration to the applicant’s circumstances and to whether they can, in the context of s 251BC(3), be regarded as “special”. In considering what is “special”, the authorities provide that something more than misfortune is required. The circumstances need not be unique, but they must have a “particular quality of unusualness that permits them to be described as special”. In reviewing some of the authorities, it seems to the Tribunal that circumstances which include severe and lengthy illness, depression and anxiety conditions that require medication and on-going counselling or treatment and which make concentration difficult or reduce the ability to organise one’s thinking and adversely affect motivation, are more likely to amount to “special circumstances”. This was the case in Re Tosio and the Tax Agent’s Board of NSW [2005] AATA 1015, where Senior Member Professor I A Shearer found that Mr Tosio’s severe and long-term depressive illness was sufficient to markedly lift his case out of the ordinary and amount to special circumstances. Moreover, in Re Marzol and Tax Agents’ Board of Queensland [2007] AATA 1087, Senior Member Dr K S Levy found that the applicant’s psychiatric disorder (his anxiety and depression), when combined with or aggravated by a series of employee issues, concerns over his father’s surgery, heart attack and strokes and other personal issues, cumulatively amounted to special circumstances.
32. Following the conclusion of the hearing, Ms Macdonald and Ms Bean separately and respectively drew the Tribunal’s attention to the decision in ReStubbings and Tax Agents’ Board of New South Wales [2006] AATA 846 (handed down by Senior Member R Hunt on 4 October 2006) and to the decision in Re McCoy and Tax Agents’ Board of New South Wales [2006] AATA 855 (handed down by Senior Member Bell on 6 October 2006). These decisions also involved consideration of the meaning of “special circumstances” in s 251BC(3)(c). The Tribunal granted leave to both counsel to make supplementary submissions in relation to the decisions, which submissions have been considered. The Tribunal has considered the reasoning in Re Stubbings and Re McCoy and is satisfied that those cases were decided on their own particular facts, as found by the learned Senior Members. Ultimately, the Tribunal has found Re Stubbings and Re McCoy to be of little assistance in reaching the conclusions that are set out in paragraph 33 of these reasons.
33. The Tribunal concludes that the applicant was convicted of a “serious taxation offence during the previous 5 years” for the purposes of s 251BC(1)(e) of the ITAA and is thus deemed by the legislation to be “… not a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers …”, in the absence of “special circumstances”. Adopting the reasoning in Re Tosio and Re Marzol, the Tribunal is not satisfied that the circumstances of the applicant (in particular, his workload or his additional workload, however that has been described) during the relevant period considered in these reasons were “special”, as required by s 251BC (3)(c)(i), such as to justify disregarding the conviction(s). Having reached this conclusion, it follows from s 251JC(1)(a)(i) that the applicant is deemed not to be a “fit and proper person” and that, pursuant to s 251JC(2), re-registration must be refused.
Person of Good Fame, Integrity and Character?
34. As Ms Bean made detailed submissions on the question of whether the applicant was a person “not of good fame, integrity and character” within the meaning of s 251BC(1)(d) of the ITAA, the Tribunal will consider that issue for the sake of completeness. The Tribunal agrees, as was submitted by both counsel, that the “fit and proper person” test (which incorporates the “good faith, integrity and character” test), applies at the time of the decision of the Board and, as later events are relevant on a merits review, at the time of the hearing before the Tribunal.
35. The Tribunal is of the opinion that the refusal to re-register the applicant, pursuant to s 251JC(1)(a)(i), would also have been justified under s 251BC(1)(d). There are a number of factors which, individually and collectively, support this conclusion. As was said by Member Dr Gordon Hughes in Re Adamec and Tax Agents’ Board of Victoria [2005] AATA 913 (at paragraph 76):
“The fact of the applicant’s conviction of a ‘serious taxation offence’ is an issue which is relevant to section 251BC(1)(d) as well as section 251BC(1)(e) of the Act. The two are not mutually exclusive (section 251BC(2)). The integrity of the tax agent who has been convicted of an offence, albeit in a personal capacity, which is of a nature integral to his professional duties, must necessarily be called into question.”
The repeated failure by the applicant to lodge his own personal income tax returns over a number of years, and to do so only upon the making of demands by the Australian Taxation Office, must call into account his fitness to practice as a tax agent. As was submitted by Ms Bean (leaving aside the most recent years and with a couple of exceptions), the applicant has had difficulty lodging his own personal income tax returns on time since 1988. Moreover, there are a number of instances where his returns were ultimately lodged a matter of years after they were in fact due. The history was, in Ms Bean’s submission, one of chronic and persistent failure on the applicant’s part to comply with his personal lodgment obligations. These lodgment difficulties continued until 2003, when the prosecution for non-lodgment of his 2001 personal income tax return appeared to galvanize the applicant into action to ensure his later returns were lodged on time.
36. It is no answer for the applicant to say that he disregarded his own obligations because he was giving priority to his clients. As was said by Member Dr Gordon Hughes, again in Re Adamec (supra), at paragraphs 78-79:
“78. … While this explanation may be true, it evinces either severe personal disorganisation (which in turn is likely to impact adversely on his professional duties) or a severe lack of regard for the very legal framework within which he practises his profession. Either way, this places the applicant's clients at risk. As Davies J stated in Re Su at page 7:
‘...It is not necessarily the case that a practitioner who does not look after his personal affairs does not properly attend to the affairs of his clients. But incompetence in relation to one's own affairs more often than not has an effect sooner or later in relation to the affairs of a client...’
79. Similarly, In Re Pappalardo Senior Member Dwyer stated at paragraph 19 that a failure of a tax agent to lodge a taxation return beyond the period allowed in a final notice served on the tax agent was an indication that the person was not a ‘fit and proper person’ to perform the functions of a tax agent.”
37. In paragraph 22 of these reasons, reference was made to the decision in Re VBY (supra) and to various cases in which “special circumstances” had been considered. In paragraph 60 of his decision in Re VBY, Senior Member Handley said:
“60. In the present case, s 251BC(1) of the Act, provides that a person is not a ‘fit and proper person … as at a particular time …’. It may be inferred that the Board decided that the applicant was not fit and proper at the date of the decision under review. Equally it may be inferred that prior to that occasion, the Board must have been satisfied that the applicant was a fit and proper person because he was allowed to practice. One may therefore also presume that the Board reached the stage where it no longer was satisfied that the applicant was fit and proper and decided that he should not be re-registered as a tax agent.”
Ms Macdonald contended that, in considering whether the applicant is not of good fame, integrity and character, the convictions which gave rise to the serious taxation offence(s) are disregarded, and the omissions behind them should logically also be disregarded, otherwise the special circumstances concession is of no practical effect. She also contended that, although he had a history of significant problems before he surrendered his registrations in 1991, the Board re-registered him in 1993, 1996, 1999 and 2002. However, as was found by Senior Member Handley in Re VBY, it can be presumed that the Board in the present case also reached a stage where it was no longer satisfied that the applicant was fit and proper and, in 2005, decided that he should not be re-registered as a tax agent. The issue now, of course, is whether this Tribunal, on the merits of the case, is satisfied that the applicant is a fit and proper person and should be re-registered under s 251JC(1).
38. The applicant made the point that he had entrusted the preparation of his quarterly BAS for 30 June 2004, 30 September 2004 and 31 December 2004 to his employee (JF) who, for the reasons already mentioned, delayed lodgment of each BAS until 20 May 2005, when he was satisfied they were correct. The applicant was aware that this was happening and was conscious that he was in default, but did nothing to address the default. The BAS were due on three separate due dates and the applicant admitted that he was conscious of the fact that his re-registration would be in jeopardy. When questioned by Ms Bean, he acknowledged that, had he had his time over, he would have lodged the BAS even though he would not have been confident that they were fully correct.
39. Overall, the approach taken by the applicant to his own personal taxation return obligations over an extended period of time has caused the Tribunal considerable concern, notwithstanding that he lodged his 2005 income tax return and (the Tribunal understands) his 2006 income tax return on time. Moreover, the various occasions when the applicant was contacted by the Board and advised of its concerns cannot be overlooked. Although decided in a different statutory context prior to the amendment of the ITAA, the Tribunal has reflected on the decision of Davies J in Su v Tax Agents’ Board, South Australia (1982) 61 FLR 1 and what the learned Judge said [at page 5]:
“… A tax agent who allows his own tax affairs to get into a state of disorder, who has constant problems himself with the Taxation Department, may not be a proper person to handle clients’ affairs for there may come a time when dissatisfaction which officers of the department may have with the tax agent personally may be reflected in their handling of his clients’ affairs. Clients who seek extensions of time should not be embarrassed by the fact that the tax agent acting for them is himself continually late in complying with the time limits imposed by the Act and the regulations. Undoubtedly, even minor offences, if sufficient in number, can so interfere with a tax agent’s standing that he is rendered not a fit and proper person to be registered as a tax agent. …”
40. Accordingly and for the reasons stated above, the Tribunal is of the view that the applicant is a person “not of good fame, integrity and character”, pursuant to s 251BC(1)(d), and that re-registration must be refused under s 251JC(2) of the ITAA.
Fit and Proper Person
41. In paragraph 17 of these reasons the Tribunal referred to the decision of Deputy President Dr P Gerber in McKay (supra). In McKay, the learned Deputy President was satisfied that the effect of s 251BC(1) was that, in deciding whether a person was “a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters” (within the terms of s 251JC(1)), he was not bound merely to consider the various factors in s 251BC(1). However, he was bound to consider the criteria in s 251BC(1) for the reason that, if any of them was made out, subject to the “special circumstances” discretion, he was compelled to find that the applicant was not a fit and proper person. If the applicant was found to be “not of good fame, integrity and character”, it must be concluded that the applicant was not “a fit and proper person (etc)” for the purposes of s 251JC(1). The Tribunal adopts the reasoning of Deputy President Dr Gerber in McKay and, having concluded that the applicant in the present case is a person “not of good fame, integrity and character“, within the meaning of s 251BC(1)(e), it must be concluded that he is not “a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters” for the purposes of s 251JC(1).
decision
42. For the above reasons, the Tribunal affirms the decision under review.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: ............J Coulthard...........................................
AssociateDates of Hearing 20/21 September 2006
Date of Decision 18 May 2007
Counsel for the Applicant Ms A Macdonald
Solicitor for the Applicant Doman Lawyers
Counsel for the Respondent Ms K Bean
Solicitor for the Respondent AGS
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14
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