SRSH and Commissioner of Taxation (Practice and procedure)
[2025] ARTA 1246
•6 August 2025
SRSH and Commissioner of Taxation (Practice and procedure) [2025] ARTA 1246 (6 August 2025)
Applicant/s: SRSH
Respondent: Commissioner of Taxation (practice and procedure)
Tribunal Number: 2019/1608-1619
Tribunal:Senior Member Lye
Place: Brisbane
Date:6 August 2025
Decision:The Tribunal grants the application to place the proceedings in abeyance pending determination of criminal proceedings.
........................[Sgnd]............................
Senior Member J Lye
Catchwords – application for the proceedings to be stayed pending the completion of criminal proceedings – whether the interests of justice require these proceedings to be stayed
Legislation
Administrative Review Tribunal Act (2024) (Cth) – s 9
Taxation Administration Act 1953 (Cth) – s 14ZZE
Cases
Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd [2019] FCA 964
Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46
Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153
McMahon v Gould (1982) 7 ACLR 202
Ransley v Commissioner of Taxation [2016] FCA 778
SRSH and Commissioner of Taxation (Taxation) [2020] AATA 3807 (9 April 2020)
Statement of Reasons
These reasons determine an interlocutory application brought by the Applicant (SRSH), a taxpayer who is in dispute with the Respondent, the Commissioner of Taxation (the Commissioner).
On 7 July 2025, the Applicant filed an application for a stay or adjournment of the Tribunal Proceedings for the duration of her criminal proceedings in the Queensland District Court (the current stay application).
This is the third stay application which has been filed in these proceedings. The first was opposed by the Respondent and was heard and refused by the Tribunal on 22 October 2019. The second was made in March 2020 and was also opposed by the Respondent. It was refused on 9 April 2020 and was the subject of published reasons (SRSH and Commissioner of Taxation (Taxation) [2020] AATA 3807 (9 April 2020).
Given the history of the proceedings and the prior reasons, I have decided it is appropriate to briefly record the written reasons for my decision on the current stay application. On this occasion, the Respondent does not oppose the application and it has been decided on the papers at the request of the Applicant and by consent of the Respondent.
For the reasons which follow, I have decided to place the application in abeyance pending determination of the criminal charges which have been laid against the Applicant and subject to procedural directions which are set out at the end of these reasons. I have nominated an initial period of twelve months to ensure the Tribunal has an opportunity to review the progress of the criminal proceedings at the end of that period.
BACKGROUND FACTS
The background to the Applicant’s dispute with the Commissioner was set out by the Tribunal in the prior reasons at [7]-[8]:
The reasons for the objection decision record the Commissioner’s view that the applicant controlled several entities and that she received benefits or payments from those entities over the years of income that should have been reported in her returns. Some of the payments were described as ‘directors fees’ or ‘gross payments’. The Commissioner found she also used a credit card paid for by the entities to charge personal expenses. I note some of the matters referred to in the objection decision do not obviously involve the other entities. For example: the applicant sought deductions for rental losses that were disallowed in a number of years, and the Commissioner says she failed to report interest income.
In order to make out her case in the Tribunal, the applicant will need to adduce evidence which adequately explains the character of the payments she received. That almost certainly includes evidence going to the source and the circumstances of the payments by the other entities. If she fails to establish the assessments were excessive and the correct (or more nearly correct) amount she should be assessed as being liable to pay, she will be unsuccessful in these proceedings. [emphasis added]
The prior reasons also summarise the nature of the criminal charges laid against the Applicant at [9]-[10]:
I have perused the material provided by the CDPP and reviewed the affidavit provided by Mr Juweinat, the lawyer engaged by the applicant for the criminal proceedings. Mr Juweinat points out the first warrant for apprehension dated 20 October 2017 outlines eleven offences arising out of allegations that the applicant in her capacity as a trustee of a trust dishonestly obtained a GST refund in several periods and used false documents to that end. The second warrant said the applicant was to be charged with:
·five counts alleging the applicant was concerned with an entity entering into an arrangement that would result in that company or entity being unable to pay their superannuation guarantee charge obligations in the future;
·two counts alleging the applicant knowingly used a false document to obtain a financial gain; and
·fifteen counts of dishonestly obtaining a financial advantage by deception – specifically, she is alleged to have lodged false business activity statements on behalf various entities.
In summary, it appears the applicant’s conduct in her capacity as a director or trustee is the focus of the charges. Ms Waterhouse, the applicant’s solicitor in the Tribunal proceedings, said in her 19 March 2020 affidavit the central question in these proceedings is likely to be whether the payments from a trust were properly characterised as loan repayments or distributions that were properly characterised as income. She said that would necessitate the applicant adducing evidence about corporate and trust structures, inter-entity loans and the methodology used for recording expenses and repayments. That evidence might go to her conduct in her capacity as director or trustee, which could be relevant to the criminal proceedings. The applicant may also need to address in the Tribunal whether she was in truth the controlling mind and will of the entities in question. That is also potentially an issue in the criminal proceedings. [emphasis added]
In refusing the second application, the Tribunal considered briefly the question of the Applicant’s right to refuse to give evidence in these proceedings, but also acknowledged there could well be an overlap between the subject matter of the criminal proceedings and the matters which must be determined by the Tribunal in these proceedings. The Tribunal was unable to determine that question without access to further information and thought it premature to stay the proceedings at that time. In particular, Deputy President McCabe formed the view:
(a) the conduct of the Applicant, who at the time had not filed her statement of facts, issues, and contentions (SFIC) and had not agreed to return to Australia, made it difficult to assess the potential prejudice to her right to a fair trial should these proceedings continue. In this regard, the Tribunal regarded the Applicant as having contributed to the uncertainty it faced in determining the merits of the stay application;
(b) it was too early to tell in the absence of the Applicant’s SFIC and evidence whether and to what extent there was any overlap between the criminal proceedings and these proceedings;
(c) the Applicant was not ‘fighting on two fights’ at the time because she had not returned to Australia and in such circumstances she could ‘continue her preparation for the Tribunal’s review until the criminal proceedings ramped up’;[1]
(d) there was a ‘relatively low’ risk of media attention or publicity (such as may prejudice the Applicant’s right to a fair trial);
(e) at that time, the Respondent was not seriously prejudiced but the Tribunal acknowledged he may be forensically disadvantaged in the future by any delays in the gathering and hearing of evidence; and
(f) while there was some concern about the Applicant’s ability to produce witness statements, the above factors did not weigh heavily in favour of a stay at that time.
[1] [29].
Before the Tribunal on the current stay application, was a detailed written application and a statement dated 7 July 2025 from the Applicant’s solicitor, Bruce Collins. I will summarise the relevant facts which reveal how the circumstances attending the current stay application differ from those which existed in or around April 2020.
10.First, and importantly, the Applicant returned to Australia in April 2021.
11.Second, there is now clarity around the charges laid against the Applicant. Mr Collins advised the Tribunal that while the Prosecution continues to refine its efforts to particularise the alleged offences:
The Applicant has now been charged with the relevant criminal offences which she is alleged to have committed or caused to be committed. Those charges revolve around offences of alleged dishonesty from which our client is alleged to have received financial benefit through the payments from [the pre-school service] ATF the Family Trust into her private bank accounts or otherwise to her benefit which are the subject matter of the majority of disputed transactions in these Tribunal proceedings
12.Third, Mr Collins advised that the Applicant has now received the brief of evidence in the criminal proceeding and substantial work is currently underway by her legal team, funded by the Applicant. Mr Collins referred to delays in the bringing of the current stay application given the Applicant’s need to prioritise the funding of her criminal defence.
13.Fourth, the Applicant has filed her SFIC and evidence in these proceedings, providing greater clarity around her evidence and her case for the purposes of assessment of any overlap between it and the criminal proceedings. Mr Collins explained that in both matters, issues relating to the Applicant’s conduct as director and trustee were relevant, including whether it was correct to identify her as the ‘controlling mind’ of the relevant childcare enterprise.
14.Fifth, Mr Collins submits there is the potential for ‘overlaps’ between the two proceedings, including the following:
a.overlaps between defences and in particular, evidence about alleged acts of domestic violence perpetrated against the Applicant;
b.overlaps between the witness list for the prosecution in the criminal proceeding and the Applicant’s proposed witnesses in this proceeding, and the desirability of key witnesses, such as the Respondent’s auditor in the criminal proceeding, among others, giving evidence in that proceeding before this proceeding progresses;
c.the admissibility of a record of interview undertaken by the auditor with the Applicant which is likely to be challenged in the criminal proceedings;
d.the Applicant’s current difficulty in engaging with people who were potential witnesses for these proceedings because they are currently witnesses for the prosecution in the criminal proceedings;
e.the proving of records and the relevance of other records common to both proceedings; and
f.the characterisation of funds which have a direct bearing on her criminal prosecution but are also relevant to these proceedings.
Evaluation
15.The Tribunal referred in the previous application to the various authorities which address the matters which should be considered before any request for stay or adjournment of civil proceedings in light of criminal prosecution.[2] The Tribunal, in considering how these principles should operate in the Tribunal setting, identified as the central question whether the interests of justice required a stay balancing the potential for prejudice to the Respondent and the public interest in timely decision-making by the Tribunal.[3]
[2] Ransley v Commissioner of Taxation [2016] FCA 778; Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153; Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; McMahon v Gould (1982) 7 ACLR 202 per Mc Mahon J at [206]-[207]; Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd [2019] FCA 964 at [51] per Moshinsky J.
[3] [22]. In accordance with the Tribunal’s objects in s 9(a) and (b) of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act).
16.I agree with that assessment. However, as can be seen, there have been substantial developments in this matter since the second stay application was made. The charges against the Applicant have now been clarified, the criminal prosecution is ramping up, there is potential for conflict between the proposed witnesses in each proceeding, and there is a clear forensic disadvantage to the Applicant should this proceeding precede the criminal proceedings.
17.There is another matter I have considered, which is the notoriety of the issues attending both proceedings. I am not confident in the present circumstances that the issues attending in either matter would not attract attention, including from the media, given they concern the operation of childcare centres. This raises the concern about whether the Applicant’s election to have her proceeding heard in private under s 14ZZE of the Taxation Administration Act 1953 (Cth) would be sufficient to protect her identity in this proceeding should the two proceedings be heard at the same time. This impacts my consideration of the question of the proper balancing of the public interest in terms of the criminal proceedings.
18.I acknowledge there will be prejudice to the Respondent from the delay of these proceedings given the age of the evidence. In saying this, I note that the Respondent no longer opposes the stay application. I would also observe that these proceedings were filed in 2019 and concern the financial years ended 2003 to 2014. They are already aged.
19.I have made directions to place the proceedings into abeyance for twelve months. At the end of that time, an application for extension of these directions will need to be made setting out information relevant to the issues between the two proceedings as they stand at that point in time. In the meantime, the solicitor for the Applicant will be required to report to the Tribunal and the Respondent regularly about the progress of the criminal proceedings, as well as confirming that they continue to be instructed. These steps are being taken in line with the Tribunal’s obligation in s 9(b) of the ART Act to ensure the Tribunal is periodically updated about the matter so it can be effectively managed.
DIRECTION
TRIBUNAL: | Senior Member Jane Lye |
DATE: | 6 August 2025 |
PLACE: | Brisbane |
The Tribunal DIRECTS that:
- These proceedings be held in abeyance until 5 August 2026.
- The Applicant is to provide an update in writing to the Tribunal with a copy to the Respondent on the progress of any prosecution of the Applicant on or before the following dates:
- 5 December 2025; and
- 7 April 2026.
- The Applicant’s solicitor is to write to the Tribunal and the Respondent within 7 days if they are no longer instructed in these proceedings and to advise the name (if relevant) of the new legal representative.
- A telephone directions hearing in these matters will be listed for 10:00AM on 10 August 2026.
- The Applicant has leave to file an application for extension of direction 1 in writing with the Tribunal on or before 31 July 2025 and to provide a copy of that application to the Respondent.
| Date(s) of hearing: | 4 August 2025 (on the papers) |
| Date final submissions received: | 7 July 2025 |
| Solicitors for the Applicant: | Tax Controversy Partners |
| Solicitors for the Respondent: | Litigation and Legal Services, Australian Taxation Office |
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