Soares and Commissioner of Taxation

[2010] AATA 903

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 903

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4128

TAXATION APPEALS DIVISION		)
Re		SIMPLICIO SOARES

Applicant

And COMMISSIONER OF TAXATION

Respondent

DECISION

Tribunal Ms J L Redfern, Senior Member

Date of Decision   24 September 2010

Date of Written Reasons 16 November 2010  

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing on 24 September 2010, the application for reinstatement is dismissed

..............[sgd]................

Ms J L Redfern
  Senior Member

CATCHWORDS

TAXATION – interlocutory decision given – reinstatement of dismissed application – application originally dismissed for non-appearance – history of non-compliance – likelihood of future non-appearance or non-compliance considered – merit of original application considered – application for reinstatement dismissed.

Superannuation Industry Supervision Act 1993, s 131

Administrative Appeals Tribunal Act 1975, s 42A(2), (8) and (9)

REASONS FOR DECISION

November 2010 Ms J L Redfern, Senior Member

The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reason for the Tribunal’s decision.

SENIOR MEMBER REDFERN:   I note that there is no appearance by the applicant, Mr Soares.  I am going to proceed in his absence. 

Mr Soares made an application for reinstatement of his application for review on 19 August 2010.  I propose to dismiss this application and will give my reasons for dismissing the application orally.

1.      On 1 September 2009, Mr Soares made an application for review of a decision by the Commissioner of Taxation to disqualify him as an approved auditor for the purposes of the Superannuation Industry Supervision Act 1993 (SIS Act).  The respondent filed and served his Tribunal documents on 1 October 2009. 

2.      The first Tribunal conference was held on 21 October 2009.  An order was made on that day directing the applicant to file a summary of evidence or witness statements, as well as all reports, records and other documents on which he intended to rely at the hearing on or before 4 November 2009.  The applicant did not comply with that order.

3.      The Tribunal held a second conference, conducted by telephone, on 18 November 2009.  An order was again made directing the applicant to file and serve all evidence upon which he would seek to rely at the hearing on or before 24 November 2009.  Again, the applicant did not comply with that order. 

4.      The respondent filed its statement of facts, issues and contents on 21 January 2010, and a third Tribunal conference was conducted by telephone on 19 February 2010.  At that conference, the orders made on 18 November were revoked and further orders were made directing the applicant to file a summary of evidence or witness statements, and any further documents on which he intended to rely, on or before 19 March 2010.  The applicant did not comply with those directions.

5.      On 23 March 2010, the matter was listed for a non-compliance directions hearing before Senior Member Allen on 1 April 2010.  The applicant did not attend the directions hearing but, on 30 March 2010, filed some documents with the Tribunal, comprising witnesses’ statements and some evidence of seminar courses undertaken by him.  The matter was listed for hearing on 26 May 2010 before me. 

6.      On 27 April 2010, the applicant wrote to the Tribunal requesting an adjournment of the hearing.  A telephone directions hearing to consider the applicant’s request for an adjournment was listed for 6 May 2010.  The applicant failed to appear at this directions hearing.  The Tribunal re-listed the directions hearing to the following day, 7 May 2010, and advised the applicant that his failure to appear at that directions hearing may result in a dismissal of his application.

7.      On 7 May 2010 I held a telephone directions hearing in the matter.  The applicant requested that the hearing date of 26 May 2010 be vacated, as he was travelling overseas on business and would not return until early July 2010.  He told the Tribunal that this trip had been planned for some time, and that he had contacted the Tribunal as soon as he became aware of the conflict.  I vacated the hearing and listed the matter for hearing at a time to be appointed near the end of July 2010, to ensure that Mr Soares had sufficient time to prepare for the hearing and file and serve any evidence on which he would seek to rely.  I also made directions that Mr Soares file and serve his statement of facts, issues and contentions, and any evidence, by 21 July 2010.  Mr Soares agreed he would be able to comply with this timetable at the directions hearing on 7 May 2010.

8.      Mr Soares was sent a copy of the directions on 7 May 2010 and a notice of the listing, setting the matter down for hearing on 28 July 2010, on 10 May 2010. 

9. Mr Soares did not comply with the directions and did not appear at the hearing on 28 July 2010. I dismissed his application under section 42A(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) on the day of the hearing. 

10.     Under section 42A(8) of the AAT Act, if the Tribunal has dismissed an application under subsection (2), the person who made the application may apply to the Tribunal for reinstatement.  The Tribunal may reinstate the application under subsection (9) if the Tribunal considers it appropriate to do so in the circumstances.

11.     Mr Soares applied for reinstatement on 19 August 2010.  In his letter applying for reinstatement dated 18 August 2010, Mr Soares wrote:

“I failed to appear at the hearing because I was very busy at this time of the year, working seven days per week with the tax season.”

Mr Soares has also requested that if the matter is to be reinstated, the hearing be set down after Christmas, as he is going away for a business trip from 2 November 2010 till 17 December 2010.  Mr Soares’ application for reinstatement was listed for hearing today, and a notice was sent to Mr Soares on 3 September 2010 advising him that the matter was to be listed.  The Commissioner of Taxation opposes this application for reinstatement and has helpfully filed submissions. 

12.     In exercising my discretion under section 42A(9), it is appropriate for me to consider the conduct of the applicant in prosecuting his case, whether there is any prejudice on the other party, and the likelihood that such conduct would occur in the future.  It is also relevant to consider whether the application has any merit.  I will deal with the issue of merit first. 

13.     I have reviewed the application, all documents filed to date, including the decision of the Commissioner and correspondence between the Commissioner and Mr Soares in relation to his objection.  I have formed the view that Mr Soares’ application has little merit.  It appears from the documents filed that Mr Soares does not dispute the multiple breaches of the SIS Act that gave rise to the issuing of the disqualification order made under section 131, which is the subject of the review.  It also appears that Mr Soares has not provided any evidence showing that he either did not fail to carry out his duties of an auditor adequately and properly, or that he is otherwise a fit and proper person to be an auditor.

14.     On the question of the conduct of Mr Soares and the prejudice to the respondent, I accept the respondent’s submissions that the applicant has a long and consistent history of non‑compliance and failure to appear and to prosecute his case.  This has caused prejudice to the respondent in having to appear on each occasion without an appearance or representation for Mr Soares.  In my view, if the matter were to be reinstated it is more likely than not that there would be further delays causing unnecessary expense to the respondent.  Having regard to the history of the matter to date and my view about the merits of Mr Soares’ appeal, I proposed to dismiss his application for reinstatement.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Redfern, Senior Member.

Signed: ...........[sgd].................................................................
             Associate

Date/s of Hearing  24 September 2010
Date of Written Reasons          16 November 2010       
Solicitor for the Applicant          Self-represented
Solicitor for the Respondent     Mr R Miller, ATO Legal Services Branch