Terence Byrt and Commissioner of Taxation
[2014] AATA 30
•23 January 2014
[2014] AATA 30
Division TAXATION APPEALS DIVISION File Number(s)
2013/2998 & 2013/2999
Re
Terence Byrt
APPLICANT
And
Commissioner of Taxation
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 23 January 2014 Place Brisbane The Tribunal refuses the application under s 42A(10) of the Administrative Appeals Tribunal Act 1975 (Cth).
..................[Sgd]......................................................
Senior Member Bernard J McCabe
Catchwords
TAXATION AND REVENUE – Whether Tribunal erred in dismissing the application – Whether application can be reinstated
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 42A(10)
Cases
Byrt and Commissioner of Taxation [2013] AATA 862
Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367
The Taxpayer and Commissioner of Taxation [2002] AATA 523
REASONS FOR DECISION
Senior Member Bernard J McCabe
23 January 2014
Terence Byrt commenced proceedings in the Tribunal on 21 June 2013 seeking review of objection decisions made by the Commissioner of Taxation. The proceedings were dismissed by Deputy President Hack SC on 27 November 2013 pursuant to s 42A(5) of the Administrative Appeals Tribunal Act 1975. The reasons for dismissal are set out in Byrt and Commissioner of Taxation [2013] AATA 862. Mr Byrt wants the proceedings reinstated.
Deputy President Hack dismissed the application after he satisfied himself the applicant had failed to comply with directions. After setting out the history of the matter (and noting the applicant was no longer represented by lawyers but that he was involved in other proceedings before the courts), Deputy President Hack observed (at [12]):
“I am well satisfied that Mr Byrt is not genuinely interested in pursuing these proceedings. He has simply failed to proceed with the application.”
The applicant was represented by lawyers at the hearing of reinstatement. They argued the learned deputy president fell into error when he inferred the applicant was not interested in progressing his application for review. The applicant is serious about the case, I was told, but inexperience prevented him from adequately explaining his commitment to the deputy president at the dismissal hearing. It was suggested it would be procedurally unfair to let the dismissal stand.
The power in s 42A(10) of the Administrative Appeals Tribunal Act 1975 is directed to cases where it would be unfair to deny an applicant the opportunity to progress his application as a result of some unfortunate error that tells us nothing about the strength of the case or the applicant’s commitment to seeing the matter through to conclusion. That explains why the Full Federal Court in Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367 said the expression “error” was not confined to errors on the part of the Tribunal. But Wilcox and Downes JJ in Goldie added there must actually be an error attending the act of dismissal before the discretion to reinstate was enlivened: at [28]-[29]. The existence of such an error is a jurisdictional fact.
I am not satisfied Deputy President Hack’s decision was attended by error. He set out the procedural history and drew an inference from those facts. There is no suggestion he has misstated or misunderstood that history. He was aware Mr Byrt was unrepresented and that Mr Byrt had other proceedings on foot. The deputy president drew a conclusion that was plainly open to him.
Mr Byrt relied on the reasoning in The Taxpayer and Commissioner of Taxation [2002] AATA 523. In that case, the Tribunal concluded its earlier decision to dismiss an application was attended by error because it was possible to have adopted an alternative course – namely, offering the applicant an opportunity to proceed with a hearing on the papers. In effect, the Tribunal was using the power under s 42A(10) to remedy what may have been a failure to afford procedural fairness. I am unsure the power under s 42A(10) can be used in that way, but I do not need to express a concluded view on the point as I am not persuaded the applicant in this case was denied an opportunity to present his case. He had ample opportunity to be heard, but he failed to seize that opportunity (or at least offer a convincing explanation for his failure to do so). I have not heard anything in the course of the reinstatement application that would suggest a different view of the facts is appropriate.
The decision to dismiss the proceedings was not attended by error within the meaning of s 42A(10). The discretion to reinstate has not been enlivened. The application for reinstatement must be refused.
I certify that the preceding 6 (six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe ......................[Sgd]..................................................
Associate
Dated 23 January 2014
Date of hearing 21 January 2014 Solicitors for the Applicant Joseph Santhosh, MST Legal Group Pty Ltd Solicitors for the Respondent Chris Hargreaves, McInnes Wilson Lawyers
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