Shaheed and Tax Practitioners’ Board - [2011] AATA 938

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 938
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/1434

GENERAL ADMINISTRATIVE DIVISION )

Re MOHAMMED SHAHEED

Applicant

And

TAX PRACTITIONERS' BOARD

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member
Date23 December 2011
PlaceSydney

Decision
Pursuant to s 33(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal will:

           a) inform itself as to the circumstances of the Applicant's dealings            with Mr Nizam Khan and events arising during the Applicant's visit            to Fiji on 15 July 2003 by reference to the findings of fact made by            the Tribunal in Shaheed and Tax Agents' Board of NSW (2006) 92 ALD 758; [2006] AATA 880; and

           b) not permit the parties to adduce or lead evidence regarding the            matters described in paragraph a) above - including the following            evidence provided by the Applicant to the Tribunal: the statements            of Mohammed Aiyub (signed 9 November 2011), Akbar Ali (signed            10 November 2011), Junier Ali (signed 10 November 2011), and            paragraphs 13-29 (inclusive) of the Applicant's signed            statement dated 11 October 2011.

......................[sgd]........................
Ms N Isenberg
  Senior Member

CATCHWORDS
PRACTICE AND PROCEDURE – application for direction to prevent applicant from re-agitating findings of fact previously determined by the Tribunal – circumstances when a party may re-agitate findings of fact previously made by the Tribunal – whether evidence was not previously available – ensuring every party is given a reasonable opportunity to present his or her case – time to determine fit and proper person test – Tribunal directs applicant not to re-agitate findings of fact previously determined by the Tribunal.
Administrative Appeals Tribunal Act1975
Tax Agent Services Act 2009
Tax Agent (Transitional Provisions and Consequential Amendments) Act 2009
Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80
Shaheed and Tax Agents’ Board of NSW (2006) 92 ALD 758; [2006] AATA 880
Shaheed v Tax Agents’ Board of NSW (2008) 72 ATR 1; [2008] FCA 703
Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31
REASONS FOR DECISION

23 December 2011 Ms N Isenberg, Senior Member

Issue

1.The Applicant has filed several witness statements, at least some of which appear to have been prepared for the purpose of revisiting the findings made by Senior Member Allen in Shaheed and Tax Agents' Board of NSW (2006) 92 ALD 758; [2006] AATA 880 (‘the earlier matter’). The Respondent contends that the Applicant should not be permitted to re-open, before me, issues that have been considered and decided by the Tribunal in relation to Mr Shaheed and canvassed in Shaheed v Tax Agents' Board of NSW (2006) 72 ATR 1; [2008] FCA 703. The Respondent sought a direction to the effect:
Pursuant to s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal will:
(a) inform itself as to the circumstances of the applicant's dealings with Mr Nizam Khan and events arising during the applicant's visit to Fiji on 15 July 2003 by reference to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shaheed and Tax Practitioners’ Board

Details

AGLC: Shaheed and Tax Practitioners’ Board [2011] AATA 938
Case: [2011] AATA 938
Decision Date: 23 December 2011

CaseChat Overview and Summary

The applicant, a registered tax agent, faced a challenge from the Tax Practitioners’ Board regarding their fitness to continue as a registered tax agent. The dispute reached the Administrative Appeals Tribunal (AAT), which had previously ruled on similar issues in an earlier case between the same parties. The Tribunal was asked to determine whether the applicant could re-agitate findings of fact that had already been decided, considering new evidence that had not been available at the time of the previous decision.

The central legal issue before the Tribunal was whether it was permissible for a party to re-agitate findings of fact that had already been determined by the Tribunal, particularly when new evidence was presented. The applicant argued that the new evidence, which included statements from several witnesses and additional details from the applicant's own statement, was not available at the time of the previous decision and should be considered. The Tax Practitioners’ Board contended that re-litigating the same facts would be an abuse of process and a waste of Tribunal resources.

The Tribunal considered the principles of fairness and the need to ensure that every party is given a reasonable opportunity to present their case. It found that while it is important to prevent the re-litigation of issues that have already been decided, there are circumstances where new evidence might warrant reconsideration. In this case, the Tribunal decided that the new evidence did not justify re-agitigating the findings of fact that had already been made. The Tribunal was also mindful of the need to determine the fit and proper person test within a reasonable time frame, and thus directed that the applicant not be permitted to adduce or lead evidence regarding the previously determined matters.

The Tribunal made orders under section 33(1)(c) of the Administrative Appeals Tribunal Act 1975, directing that the Tribunal would inform itself of the circumstances of the applicant's dealings with Mr Nizam Khan and events from the Fiji visit based on the findings from the earlier case. The Tribunal also directed that no evidence would be allowed regarding these matters, including specific statements and parts of the applicant's statement provided to the Tribunal.

Orders

Orders of the court

Pursuant to s 33(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal will:

a) inform itself as to the circumstances of the Applicant's dealings with Mr Nizam Khan and events arising during the Applicant's visit to Fiji on 15 July 2003 by reference to the findings of fact made by the Tribunal in Shaheed and Tax Agents' Board of NSW (2006) 92 ALD 758; [2006] AATA 880; and

b) not permit the parties to adduce or lead evidence regarding the matters described in paragraph a) above - including the following evidence provided by the Applicant to the Tribunal: the statements of Mohammed Aiyub (signed 9 November 2011), Akbar Ali (signed 10 November 2011), Junier Ali (signed 10 November 2011), and paragraphs 13-29 (inclusive) of the Applicant's signed statement dated 11 October 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		MOHAMMED SHAHEED