Warry and Commissioner of Taxation (Practice and procedure)

Warry and Commissioner of Taxation (Practice and procedure) [2025] ARTA 836 (18 June 2025)
Applicant:Ian Warry
Respondent: Commissioner of Taxation
Tribunal Number: 2023/2267

Tribunal:General Member C Willis
Place:Melbourne
Date:18 June 2025

Decision:Pursuant to sections 49 and 53 of the Administrative Review Tribunal Act 2024 (Cth) the Tribunal declines to admit into evidence or otherwise receive the Applicant Affidavit and Additional Evidence.
Pursuant to paragraph 101(1)(b) of the Administrative Review Tribunal Act 2024 (Cth) the Tribunal dismisses this application.

..........................[SGD]......................................
General Member C Willis
Catchwords
TAXATION - PRACTICE AND PROCEDURE – Applicant seeking to provide additional affidavit and documentary evidence on day of hearing – Tribunal’s power to exclude or limit evidence or issues – Tribunal’s obligation to ensure a party is given a reasonable opportunity to present their case, make submissions and adduce evidence – grounds for dismissal of application – failure to comply with Tribunal direction or failure to proceed with application within reasonable time – dismissal of application where Tribunal satisfied that application has no reasonable prospects of success – Tribunal declines to receive additional affidavit or evidence – application dismissed
Legislation
Administrative Review Tribunal Act 2024 (Cth) ss 49, 52, 53, 55(1), 100, 101(1)(b), 105
Taxation Administration Act 1953 (Cth) s 14ZZK
Cases
Charara v Commissioner of Taxation [2016] FCA 451
Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64
Re Filsell and Comcare [2009] AATA 90
Kristoffersen and Secretary, Department of Social Services [2018] AATA 524
Statement of Reasons
INTRODUCTION

Mr Warry (the Applicant) had sought a review of an objection decision of the Commissioner of Taxation (the Respondent) relating to the disallowance of certain deductions claimed by the Applicant and inclusion of certain amounts which the Respondent said should have been returned as assessable income for the years of income ended 30 June 2014, 30 June 2015, 30 June 2016, 30 June 2017 and 30 June 2018 (the ‘Relevant Years’).
This matter was listed for a two-day hearing before the Tribunal on 14 and 15 May 2025. The day before the hearing the Tribunal was advised that the Applicant might wish to file further evidence, and at the beginning of the hearing the Applicant said that he wanted the Tribunal to consider an affidavit he had sworn together with some hundreds of pages of documents not previously filed with the Tribunal. Not surprisingly the Respondent objected to the Applicant’s proposal.
For the reasons set out below the Tribunal did not agree to consider this additional material and has decided to dismiss the Applicant’s application.
BACKGROUND
Applicant’s circumstances
The following ‘high level’ description of the Applicant’s circumstances is included to provide context to the unusual circumstances that arose on the day of the hearing. It is drawn from other material filed by the Applicant with the Tribunal, the T Documents[1] filed by the Respondent and statements made by the parties to the Tribunal at the hearing.
[1] A reference to T Documents or Supplementary T Documents is a reference to documents required to be filed by the Respondent in accordance with section 14ZZF of the Taxation Administration Act 1953 (Cth).
The Applicant was employed on a full-time basis by a company called Brenntag Australia Pty Ltd (‘Brenntag’) from around January 2014.[2] In addition to amounts of salary he said that his employment contract ‘included a pre tax offer for the supply of a motor vehicle by me at $20 000 PA. This vehicle was use exclusively by me for work purposes 100%. In 2014 and 2015 the $20 000 included all costs associated with the vehicle.’ At the end of 2015 he said that the agreement changed to Brenntag supplying him with fuel cards and covering the insurance on the vehicle.
[2] T39, page 310.
The Applicant said that in August 2014 he entered into a lease agreement with the MacDonald-Warry Family Trust (the ‘Trust’) for a 2014 Toyota Landcruiser (the ‘Vehicle’ and the ‘Lease’).[3] The Applicant was to make monthly payments of $4,000 under this arrangement. He would be responsible for the maintenance and servicing of the Vehicle. There was a reference to ‘accessories’ to be installed in November 2014.
[3] T43.
The Applicant claimed deductions[4] for:
(a)work-related car expenses (‘Car Expenses’) of between $35,000 and $46,000 in his income tax returns for each of the Relevant Years using the ‘logbook’ method.
(b)work-related travel expenses (‘Travel Expenses’) in the years ended 30 June 2014 and 30 June 2018.
(c)interest of $37,551 (‘Interest Deduction’) in his return for the year ended 30 June 2018.
[4] The Applicant’s income tax returns are at T3 to T7, and a summary of deductions claimed is set out in the audit finalisation letter at T9.
The Applicant and his wife co-owned two rental properties and his wife owned a further rental property (collectively the ‘Rental Properties’) during some of the Relevant Years which were leased to tenants and generated rental income (‘Rental Income’). The Applicant claimed:
(d)‘Rental interest deductions’ (‘Rental Interest Deductions’) of between $33,000 and $37,000 in each of the years ended 30 June 2014, 2015, 2016 and 2017.
(e)Capital works deductions (‘Capital Works Deductions’) in each of the years ended 30 June 2014, 2015, and 2016 in relation to work he said had been carried out at one of the Rental Properties.
(f)Other rental deductions (‘Other Rental Deductions’) in each of the years ended 30 June 2014, 2015, 2016 and 2017 for expenses such as rates, body corporate fees, utility expenses, fees for property valuation services and travel to inspect and manage the Rental Properties.
The Respondent said that from around July 2005 to April 2014 the Applicant had been a director of a company Bridgeport Tyre Services Pty Ltd (‘Bridgeport’) which had been placed into receivership in 2013 and subsequently wound up. The Rental Properties had been mortgaged as security for loans taken out by the company with a bank.[5]
[5] T2, at page 18.
The Applicant was made bankrupt in April 2014.[6]
[6] T2, at page 18.
The Applicant sold one of the Rental Properties in November 2014. The Applicant sought to include various costs and outgoings associated with the sale in the cost base of that property. The Applicant also identified fees paid to his lawyers (‘Applicant’s Lawyers’) between January 2014 to May 2016 as being included in the cost base of the property on the basis that the fees related to legal action against the bank in relation to the Rental Properties.
The Applicant reported carry forward losses (‘Carry Forward Losses’) in his income tax returns of between $157,000 and $298,000 in each of the Relevant Years.
On 31 May 2018 the Applicant lodged his income tax returns for the years ended 30 June 2014, 2015, 2016 and 2017.[7] The Applicant lodged his income tax return for the year ended 30 June 2018 on 9 July 2018.[8]
[7] T3 to T6.
[8] T7.
Respondent’s audit and review processes
The proceeding before the Tribunal involves a review of the Respondent’s decision at objection, however the following matters that occurred prior to the making of that decision are relevant in the context of issues and contentions brought to the Tribunal.
On 17 August 2018 the Respondent wrote to the Applicant advising that it was going to audit his income tax returns for the Relevant Years because his work-related expense and rental claims were higher than expected compared to other taxpayers.[9] In an audit finalisation letter dated 18 September 2018[10] the Respondent said that because the Applicant had not provided the information that had been requested, the Respondent had finalised the audit on the basis of the information it had. The reason given for the finding in relation to each of the items in each of the Relevant Years was ‘substantiation of claims not provided in response to audit.’
[9] T8.
[10] T9.
Between 25 September 2018 and 3 December 2018, the Respondent issued notices of amended assessment (‘Amended Assessments’) and notices of assessment for a shortfall penalty (‘Penalty Assessments’) for the Relevant Years.[11]
[11] T11 to T18 and ST1 to ST2.
Following the issue of the Amended Assessments and Penalty Assessments there was an extended period of engagement between the Applicant and Respondent in relation to differences of opinion about the audit process and provision of information to substantiate claims in his tax returns. At this time the Applicant’s wife was also being audited and the Applicant appears to have been managing this process as well as his own tax matters.
In June 2021 the Applicant lodged a complaint with the Respondent about the Respondent’s audit and objection[12] processes, stating that he had provided ‘thousands’ of documents in support of deductions and losses claimed by him and his wife. However, in its response to his complaint[13], the Respondent said that their records indicated that no additional information had been provided in relation to the Applicant. [14] In particular, there was no documentation provided in relation to work related expenses or rental income deductions for the Relevant Years. The only document the Respondent could find was a ‘request for objection’ from the Applicant. Some documents had been provided in relation to an objection lodged for the Applicant’s wife, however this objection had been withdrawn. The Respondent said that if the Applicant and his wife wished to dispute their assessments, they needed to lodge valid objections.
[12] The Applicant does not seem to have lodged an objection in relation to his tax matters at this point.
[13] See letter from Respondent dated 27 October 2021 at T19.
[14] It is not clear from the correspondence whether the ‘thousands’ of documents were not provided by the Applicant to the Respondent at all, or whether some or all were provided after finalisation of the relevant review processes by the Respondent.
The Applicant lodged an objection (‘Objection’) on 31 October 2021.[15] The Applicant’s response to questions in the objection form suggested that he was only objecting against the Car Expenses for the years ended 30 June 2013 to 30 June 2017. On 17 November 2021 the Respondent spoke to the Applicant to clarify a number of matters, including confirmation of the matters and years covered by the Objection and whether the Applicant intended to provide further information to support his claims.[16] The Respondent asked that the Applicant provide any further information by 26 November 2021 or contact the Respondent for an extension of time to provide the information.
[15] T20.
[16] See email correspondence at T22.
The Applicant’s response on the same date indicated that he did wish to object against a wider range of issues and years and intended to provide further information.[17] He noted that he had been diagnosed with cancer in 2017 and had suffered a workplace injury in 2018 which required surgery. He sent a further email to the Respondent later that day[18] identifying some additional issues.
[17] T22, page 230.
[18] T24
Between November 2021 and February 2023:
(a)The Respondent made several requests for further supporting documentation from the Applicant or setting out specific matters where the Respondent required clarification or additional information. The Applicant provided some responses by way of emails clarifying particular matters, confirming that he had located certain documents (including receipts and bank statements which he said would support additional deductions) and stating that he would provide substantiating documentation to the Respondent.[19]
(b)The Applicant identified 7 boxes of documents in his possession from his time with Brenntag as well as bank statements which he said he needed to go through.[20]
(c)The Applicant may have provided documents to the Respondent relating to his wife’s tax matters but which the Respondent did not believe addressed the Applicant’s tax matters. Nevertheless, the Respondent did indicate to the Applicant that it would review material provided in relation to the Applicant’s wife’s tax matters for the 2015 and 2016 financial years.[21]
(d)The Applicant may also have provided some information in relation to another objection involving issues in periods outside the Relevant Years.[22]
(e)The Applicant experienced ill health, being hospitalised in July 2022, and was otherwise away from home around late September/early October 2022 which he told the Respondent would affect his ability to respond to the requests for information.
[19] For example, T26, T27, T28, T31.
[20] T34.
[21] T26, at page 246.
[22] T28.
In October 2022 the Applicant said he would forward logbooks for the Vehicle to the Respondent, but requested additional time to complete compiling the further information requested as he was going away.[23] He sent a letter to the Respondent making statements about certain factual matters but indicating that the provision of logbooks and other documentation would be finalised ‘in coming weeks.’[24] Some logbook material was provided on 14 November 2022[25] but the other information that had been requested was apparently not provided. Later that month the Applicant advised that he was again in hospital.
[23] T35, T36
[24] T38.
[25] T42 and T43. The logbook material comprises photocopies of pages for the calendar years 2015 and 2017. It is not clear when these logbooks were completed.
In December 2022 the Applicant wrote to the Respondent indicating that it was taking time for him to complete the logbooks. The Respondent replied advising that logbooks were required to be kept contemporaneously, and it was not possible to prepare them some years after the relevant travel had occurred.[26]
[26] T45.
The Applicant provided the Respondent with copies of some invoices that had been provided by the Applicant’s Lawyers for legal fees in relation to the Rental Properties. The Applicant said he was seeking documents from PriceWaterhouseCoopers (PWC) in relation to the sale of Rental Properties which he said he needed to obtain to support his claims.[27] In January 2023 the Applicant’s Lawyers provided a letter from PWC in which PWC stated that they had reviewed their file and had not been involved in the sale of any of the Rental Properties. PWC explained that although they were appointed as receiver of Bridgeport, they did not act in relation to the sale of those properties which were sold directly by the bank as mortgagee in possession.[28]
[27] T41, T47, T48.
[28] T49. A copy of the relevant transfer, a title search and a copy of a demand by the bank to the Applicant’s wife in her personal capacity is consistent with PWC’s statement.
The bank provided settlement statements for the two Rental Properties it had sold in its capacity as mortgagee which the Applicant provided to the Respondent.[29] The Applicant also sent a letter to the Respondent with a breakdown of interest and bank charges for the year ended 30 June 2015 but there was no supporting documentation given for that breakdown.
[29] T52.
On 3 February 2023 the Respondent advised that it would finalise the Objection on the basis of the information it had as at 6 February 2023, and if the Applicant had further information he wished to provide he should do so by then.[30]
[30] T51.
The Respondent provided the Applicant with an objection decision dated 16 February 2023 (the ‘Objection Decision’). The Respondent allowed the Applicant’s Objection in part for each of the Relevant Years. In summary the Respondent:
(a)Found that the Applicant had failed to correctly report salary or wages (‘Employment Income’) in each of the Relevant Years and the Applicant had not provided any proof as to why the amounts reported by the Applicant in his income tax returns should be preferred over the Respondent’s records.
(b)Found that the Applicant had failed to report a (nominal) amount of bank interest (‘Interest Received’) received but not returned as assessable income in the year ended 30 June 2014, based on records of an account with the relevant bank.
(c)Found that the Applicant had failed to report dividends (‘Dividends’) received but not returned as assessable income in some of the Relevant Years.
(d)Allowed a deduction for part of the Car Expenses claimed based on the ‘cents per kilometre’ method rather than on the logbook method, on the basis that the Applicant had not satisfied the substantiation requirements for the logbook method. Further, the Applicant had not provided proof of having made any payments in accordance with the Lease. The Respondent was willing to accept that due to the nature of the Applicant’s work in the Relevant Years he would have travelled more than 5000 kilometres in each year and therefore allowed the deduction on the basis of the 5000 kilometres able to be claimed.
(e)Affirmed its decision in relation to Travel Expenses on the basis that the Applicant had not provided any proof of his entitlement to these deductions.
(f)Affirmed its decision in relation to Interest Deduction on the basis that the Applicant had not provided any proof of investment income in relation to which a deduction for interest could be claimed.
(g)Allowed in part the Applicant’s Objection in relation to Rental Income on the basis of tenancy agreements and bank statements provided by the Applicant.
(h)Allowed in part the Applicant’s Objection in relation to Rental Interest Deductions on the basis of some loan documentation and investment account statements relevant to some of the Relevant Years. The Respondent also had regard to information about the Rental Properties that it had separately obtained (such as satellite images of the properties) and to the sale of two of the Rental Properties.
(i)Allowed in part the Applicant’s Objection in relation to Capital Works Deductions based on some limited information provided by the Applicant. Otherwise, there was no documentation to quantify the cost of work on the Rental Properties or to indicate whether they were capital works, repairs or a non-deductible amount.
(j)Allowed in part the Applicant’s Objection in relation to Other Rental Deductions. Information relating to charges such as rates, water or sewerage charges and insurance premiums was available. The Respondent also accepted that although the Applicant had not provided evidence of costs relating to travel to inspect or manage properties, it was reasonable to assume that he had undertaken some such travel. The Respondent refused to allow the Applicant a deduction for ‘loss of his time’ in travelling. The Respondent also refused the Applicant’s claims in relation to other amounts, such as property valuation fees, in the absence of any documentation indicating such fees were incurred.
(k)Affirmed its decision in relation to the Carry Forward Losses. This was on the basis that the Applicant became bankrupt in April 2014 which precluded him from deductions for losses from the year ended 30 June 2014 in relation to losses incurred before he became bankrupt.[31] The Applicant had not provided any evidence to support his contention that some losses related to debts outside his bankruptcy.
(l)Allowed in part the Applicant’s Objection in relation to the CGT treatment of the sale of the Rental Properties based on the settlement statements provided by the bank, invoices from the Applicant’s Lawyers and information provided by the Applicant relating to legal proceedings he took against the bank.
(m)Allowed in part the Applicant’s Objection in relation to the Penalty Assessments, but only insofar as the items above reduced the Applicant’s tax shortfall amount. Otherwise, the Respondent affirmed its decision that the Applicant was liable to administrative penalties for making false or misleading statements to the Respondent which arose from recklessness by the Applicant, and there were no grounds for remission of the penalty.
[31] See section 36-25 of the Income Tax Assessment Act 1997 (Cth).

As a general observation, the amounts allowed to the Applicant under the Objection Decision were a relatively small proportion of the overall tax liabilities raised. From the outline above it appears that the disallowance of the Applicant’s Objection was largely based on the Respondent’s position that the Applicant had failed to provide documentation or other evidence supporting his claims for deductions, or refuting his derivation of income or gains.
Procedural history before the Tribunal
Some detail about the progress of this matter through the Tribunal is appropriate in light of what occurred at the hearing and the days prior.
The Applicant lodged an application with the Tribunal on 12 April 2023.[32] He said that he was seeking a review for the following reasons:
I have 3 types of records to verify my actual costs of the motor vehicle all electronic being credit card fuel card and daily diary
I have transferred to log books over several years
I have been told this is not acceptable
The vehicle was used exclusively for work purposes and as such the start and end speedo reading confirm and cross references with credit card and fuel cards
[32] The application did not include the Objection Decision. After inquiries by the Tribunal, the Respondent provided a copy of the Objection Decision to the Tribunal directly. The Respondent also clarified that the 16 February 2023 Objection Decision was an amended version of a document sent on 14 February 2023, to take account of excess concessional contributions.
The matter was listed for a conference on 30 August 2023. Following that conference the Tribunal Conference Registrar made directions (‘August 2023 Directions’) that the Applicant file a witness statement and any further reports, records or documents on which he intended to rely by 12 January 2024.
On 8 January 2024 the Applicant requested an extension of time to file his materials advising the Tribunal that he was having difficulty submitted the evidence which comprised over 3000 items. He wrote to the Tribunal as follows:
‘I am having major issues with the documentation for this matter
I have a time line to deliver by 12 January 2024
The issue is I have reams of paper work
Full work diaries
65 credit cards statements of 2 or 3 pages each statement
A lot of other bank statements
And a lot of other documentation with regards to this matter
I is virtually impossible to send copies
My approach would be to take the documents to be examined with me present to explain all the contents
This is quite time consuming’
The Tribunal wrote to the Respondent on 11 January 2024 asking for its response to the Applicant’s request for additional time. The Respondent replied on the same day, suggesting that the matter be listed for an in-person conference as soon as possible (in place of a previously scheduled telephone conference) and noting that:
(a)Although the application had been lodged in April 2023, the timetabling of the matter had been delayed until 2024 due to the Applicant having taken a lengthy holiday during which he said he had limited mobile phone/internet access.
(b)It was a matter for the Applicant to determine what documentary evidence he sought to rely on, however by law the onus was on the Applicant to prove his case even if this involved a significant volume of material.
The Applicant filed the following materials on 12 January 2024:
(a)A ‘credit card statement’ for the period 26 August to 26 December 2014. He noted that ‘some dates were missing’ in that period as he had not been able to locate some statements. The Tribunal notes that this document is not a periodic credit card statement, but is called a ‘cardholder activity report’ which appears to summarise transactions on the card.
(b)An ‘analysis’ of the credit card statement prepared by the Applicant explaining how it demonstrated that the Vehicle was used outside Brisbane and therefore for work purposes.
(c)A Toyota service maintenance record book which appears to relate to the Vehicle, recording periodic servicing from October 2014 to January 2023. Odometer readings at the time of each service are recorded.
(d)A statement signed by the Applicant[33] and dated 11 January 2014 that the Vehicle was used solely for work related purposes.
(e)A covering email stating that:
(i)He had credit card statements for the 2015 to 2018 financial years, but they were ‘numerous’, he could spend time scanning and emailing the statements, but he would not have time to undertake an analysis of those.
(ii)He and his wife owned a second Landcruiser of the same make and model as the Vehicle, which they used for personal purposes.
(iii)He was unable to obtain the bank statements or trust deed of the Trust because these documents were held by his former accountant who had lost the documents when they ceased their accountancy business.
(iv)He had previously provided logbooks for the Vehicle to the Respondent. He only recorded odometer readings at the beginning and end of each calendar year and had thought that ‘there was no need to record the various trips because all trips were work related.’
[33] This was not prepared as an affidavit or statutory declaration.
Although these filings may have appeared to comply with the August 2023 Directions, it has become clear that these materials did not represent all of the evidence which the Applicant intended to rely upon and which he had been directed to file.
The matter was listed for an in-person conference to be held on 9 February 2024 and the Tribunal gave the Applicant until 4 March 2024 to file materials.[34]
[34] Per directions made on 22 January 2024 (‘January 2024 Directions’).
In relation to the conference that had been listed for 9 February 2024 the Applicant advised the Tribunal on 19 January 2024 that he and his wife had been travelling away from Queensland for over 9 months, had non-refundable travel bookings and would not be available until the end of February 2024. On 22 January 2024 he advised the Tribunal that he had over 1000 documents to file and that a statutory declaration would be filed by a ‘third person’ in relation to further documents. He said that he still wished to have an in-person conference with the Respondent. The conference was therefore rescheduled to 4 March 2024.
On 27 February 2024 the Applicant’s Lawyers advised the Tribunal that they had been retained by the Applicant in the proceeding[35] and requested an extension of time until 18 March 2024 to file the Applicant’s materials in accordance with the Tribunal’s (already extended) timetabling directions. This was because after spending ‘significant time’ reviewing all documents to determine what additional documents were required to be filed in accordance with the Directions, they believed that they required additional time to ‘conduct further investigations into the Business Vehicle Lease which forms part of the disputed deductions in the matter.’
[35] This is the same firm of solicitors that represented the Applicant in relation to his Bridgeport matters and the sale of his Rental Properties.
On 4 March 2024 the Tribunal made further Directions (‘March 2024 Directions’) giving the Applicant until 7 May 2024 to file any witness statement, expert reports, records and other documents on which the Applicant intended to rely at the hearing. The Applicant was also directed to give to the Tribunal by 25 March 2024 any request for the issue of summons to third parties. A conciliation with a Conference Registrar was listed for 13 June 2024.
Summons were issued to two third parties[36] in March 2024 and June 2024, seeking statements of transactions on any fuel card issued by those third parties and held by the Applicant during the Relevant Years. These statements were sought on the basis that Brenntag, the Applicant’s employer during this period, had refused to provide him with logbooks for the Vehicle. The Tribunal was subsequently advised by the third parties that they did not hold any documents within the scope of the summons.
[36] One of the third parties had acquired the business of the other, hence the need to issue a summons to both.
On 1 May 2024 the Applicant’s Lawyers requested a further extension of time for compliance with the March 2024 Directions to 28 May 2024. This was because after contacting various commercial leasing companies to provide evidence in relation to the value of the Lease, they were unable to obtain more than one quote and therefore they had approached a forensic accountant who required additional time to prepare a statement.
The Applicant filed an expert report of some 318 pages prepared by Mr David Stephens of Benjamin & Stephens, Chartered Accountants dated 22 May 2024. Amongst other things:
(a)Mr Stephens said he had proceeded on the basis that detailed and complete expense records relating to the Vehicle were not available and if such records did become available, he would need to update his analysis.
(b)The report covered both the Vehicle and the other Landcruiser identified by the Applicant as being kept by him and his wife for their personal use. Some of the documentation referenced by Mr Stephens, such as financing documents[37], relate to the ‘personal use’ Landcruiser.
(c)The schedule of modifications to the Vehicle at Annexure 3 to the report appears to be a document that had been typed up by the Applicant without further supporting documentation.
(d)The report included miscellaneous receipts for car parts, engine oil and accessories from various auto retailers and repair outlets. However, it is not clear whether which of these receipts relate to the Vehicle or the other Landcruiser (or whether any relate to a different vehicle).
[37] See for example Annexure 1, 2011 Toyota Finance Offer
On 12 June 2024 the Applicant’s Lawyers wrote to the Tribunal requesting that the Conciliation listed for 13 June 2024 be rescheduled to allow the parties time to review the materials obtained under summons. It is noted that the further summons issued in June 2024 were required after the Applicant’s Lawyers advised the Tribunal that, due to a change in staff, they had not served the original summons issued in March 2024. The conciliation was rescheduled for 26 August 2024. Further directions were made by the Tribunal (‘June 2024 Directions’) giving the Applicant until 11 July 2024 to file any further evidence upon which he intended to rely at the hearing.
The Applicant’s Lawyers wrote to the Tribunal again on 23 August 2024 advising that the Applicant was unable to attend the rescheduled conciliation as he was overseas, and therefore requested the conciliation be deferred until late September 2024.
The summonsed party had written to the Applicant’s Lawyers on 28 June 2024 advising that they did not hold any records in the name of the Applicant or Brenntag and therefore had no documents to produce. The Applicant provided this information to the Tribunal on 26 August 2024.
The Tribunal made further directions on 26 August 2024 (‘August 2024 Directions’) requiring:
(e)Each party to give a hearing certificate to the Tribunal by 13 September 2024 indicating their availability for a hearing in the time period between February and April 2025.
(f)The Applicant to file with the Tribunal by 8 October 2024 a Statement of Facts, Issues and Contentions (SFIC), together with any further witness statements, expert reports, records or other documents on which he intended to rely at the hearing.
(g)The parties to inform the Tribunal by 4 November 2024 whether they had reached agreement as to the terms of a decision in the proceeding.
(h)The Respondent to file with the Tribunal by 16 December 2024, a SFIC together with any further witness statements, expert reports, records or other documents on which it intended to rely at the hearing.
(i)The Applicant to file with the Tribunal by 25 January 2025 any amended SFIC.
The Respondent filed its hearing certificate on 30 August 2024, indicating that it would seek to cross examine Mr Stephens in relation to his report. The Applicant filed his hearing certificate on 16 September 2024. In that hearing certificate the Applicant indicated that he also intended to call Mr Stephens.
On 17 September 2024 the Applicant filed with the Tribunal the following:
(a)A copy of an undated email from the Oaks Gateway hotel in Townsville indicating that the Applicant had had a reservation to stay at the hotel on 30 January 2018.
(b)A copy of a tax invoice from Kortes Resort in Rockhampton indicating that the Applicant stayed there on 2 and 3 January 2018.
(c)A copy of a travel itinerary for travel between Mt Isa and Brisbane in October 2017, with the Applicant as the passenger, to be charged to Brenntag as the ‘debtor.’
(d)A copy of a tax invoice dated 17 January 2017 addressed to Brenntag care of the Applicant for a 21-night stay at the Allure hotel in Townsville.
(e)Copies of ‘cardholder activity statements’ for a card issued in the name of the Mr Ian Warry of Brenntag, care of an address in Victoria, for miscellaneous periods across April 2014, June 2014 to March 2015, January to November 2017 and January 2018. An expense claim statement is included with one such document and there are handwritten annotations on some of the pages.
On 28 October 2024 the Applicant’s Lawyers wrote to the Tribunal requesting an amendment to the August 2024 Directions, being a (further) amendment to the timetable for filing of materials by the Applicant. It is noted that this request was made some weeks after the due date for the Applicant to lodge his SFIC and related evidence as per the August 2024 Directions. The Applicant’s Lawyers requested that the Applicant be given until 6 December 2024 to file his SFIC and related evidence. The reason given by the Applicant’s Lawyers for the request was that:
(a)The Applicant had been on an overseas trip since July 2024[38] that had been delayed due to the COVID-19 pandemic, a workplace injury in 2020[39] and a subsequent road injury.
(b)The Applicant had been self-represented when he filed his application with the Tribunal and was unaware of restraints and timelines that would be imposed.
(c)In the Applicant’s view, the Respondent would not be prejudiced by the delay.
[38] At the hearing the Tribunal confirmed with the Applicant that he had been on an overseas trip in Europe for approximately six months in 2024.
[39] It appears that this refers to the injury sustained in 2018.
No extension of time was granted by the Tribunal. In any event, the Applicant did not file a SFIC (or amended SFIC) in compliance with the August 2024 Directions. That is, he did not file a SFIC by 8 October 2024, he did not file a SFIC by 6 December 2024 nor did he file any SFIC prior to the hearing. Other than the miscellaneous invoices and bank statements provided on 17 September 2024 and the hearing certificate of 16 September 2024, there was no further communication by or on behalf of the Applicant to the Tribunal until 12 May 2025 (as set out below).
The Respondent wrote to the Tribunal on 31 October 2024 indicating that it was aware that the Applicant had not lodged a SFIC by 8 October 2024 as directed, but also noting that it had seen the Applicant’s Lawyer’s letter of 28 October 2024 to the Tribunal. The Respondent confirmed that the parties had not reached any agreement on the matters in the proceeding.
The Respondent filed its SFIC on 16 December 2024, stating that it could only address the issues, facts and contentions as they appeared to the Respondent based on the material then available. The Respondent therefore proceeded on the basis that the Applicant had only sought review of the Objection Decision in relation to the Car Expenses and this fell to be considered under Division 28 of the Income Tax Assessment Act 1997 (Cth) (‘ITAA 1997’).[40]
[40] This was on the basis that the relevant vehicle, a 2014 Toyota Landcruiser, had a payload capacity of less than 1 tonne and was therefore a ‘car’ for the purposes of Division 28.
The proceeding was listed for a two-day hearing on 14 May and 15 May 2025. The Tribunal sent the parties a Listing Notice for this hearing on 25 March 2025. The Listing Notice was sent to the Applicant’s Lawyers, who were recorded by the Tribunal as the Applicant’s nominated representative.
In accordance with its usual ‘pre-hearing check’ procedure the Tribunal contacted both parties by email on 7 May 2025 to confirm their appearances at the hearing. The Respondent confirmed its attendance to the Tribunal on 8 May 2025.
The Tribunal had sent its pre-hearing check email to the Applicant care of the Applicant’s Lawyers. When no response was received by the Tribunal, an officer of the Tribunal rang the Applicant’s Lawyers on 12 May 2025. On 13 May 2025 the Tribunal was advised by the Applicant’s Lawyers that they were no longer representing the Applicant in a formal capacity. However, they said they would assist the Applicant by providing a meeting room at their offices so that he could attend the Tribunal hearing. They also communicated the circumstances to the Respondent. The Applicant’s Lawyers told the Tribunal that the Applicant might have some further evidence that he wished to present at the hearing.
On 13 May 2025, the day before the scheduled hearing of this matter, the Applicant apparently swore an affidavit (‘Applicant Affidavit’) outlining matters he wished the Tribunal to consider at the hearing. The Applicant subsequently told the Tribunal that his affidavit exhibited a significant number of documents that had not previously been filed with the Tribunal, or provided to the Respondent, which the Applicant wanted to put before the Tribunal by way of further evidence (‘Additional Evidence’).
The Tribunal understands that the Applicant Affidavit and Additional Evidence were only provided to the Respondent on the afternoon before the hearing.
At the hearing the Applicant represented himself with accompanied by a support person.[41] The Applicant told the Tribunal that he had not been aware of the date of the hearing until a couple of days prior. It was only at the beginning of the hearing that the Applicant advised the Tribunal that he had prepared the Applicant Affidavit and Additional Evidence and wanted to provide these to the Tribunal for its consideration at the hearing. The Tribunal asked the Applicant to explain what this material was, how it was relevant to the decision to be made by the Tribunal and why he had not provided this material to the Tribunal previously. As a matter of procedural fairness to the Respondent the Tribunal did not want to view the material absent an understanding of what it might contain. Based on the Applicant’s explanation, the Tribunal would consider whether it was appropriate or necessary to review the material in further detail.
[41] It was not clear whether the Applicant’s support person was legally qualified.
The Applicant told the Tribunal that:
(a)The Respondent had raised an issue of whether the Trust had been placed into receivership. A letter from the Respondent had suggested that the Trust was put into receivership around 2013, when it had never been in receivership. This was a ‘major point’ and a ‘serious error.’ It had taken him some time to obtain evidence rebutting this. The Applicant’s Affidavit and Additional Evidence would address this.
(b)He had a lot of personal evidence to provide, obtained on an ongoing basis.
(c)The Respondent had incorrectly suggested that the Applicant did not have a signed version of the Lease, casting doubt on the validity of the Lease.
(d)He had not seen or was not aware of the Respondent’s SFIC of 16 December 2024
(e)Nevertheless, he had previously indicated to the Respondent that he disputed the characterisation of the Vehicle as a ‘car’ such that Division 28 of the ITAA 1997 (and therefore the analysis in the Respondent’s SFIC) was not relevant. The Applicant’s Affidavit and the Additional Evidence would also address the question of whether the Vehicle was a car.
(f)The Applicant Affidavit and Additional Evidence would also address the question of lease payments being made. He referred to a Luxury Car Tax Determination of the Respondent.
(g)He confirmed that he had not filed a SFIC but sought to rely at the hearing on matters he had raised in a confidential issues statement or similar prepared on a ‘without prejudice’ by the Applicant’s Lawyers around June 2024 for the purposes of a Tribunal conciliation.[42] The Applicant’s Affidavit and Additional Evidence were in support of matters raised in those documents. He indicated that he was unaware of the need for him to prepare and file a further document by way of a SFIC.
(h)He had applied considerable resources and time to this proceeding, particularly in relation to obtaining information and materials to support his case. He had spent months pursuing the issues relating to the receivers.
(i)He had not made arrangements for Mr Stephens to attend the hearing and give evidence, and would rely on Mr Stephens’ written report as previously filed with the Tribunal.
[42] Any document prepared for an alternative dispute resolution process and provided on a ‘without prejudice’ basis would ordinarily be treated as confidential and not be made available to the Member undertaking the hearing of the substantive matter.

The Tribunal asked the Applicant to clarify whether the Additional Evidence comprised the ‘3000’ or ‘1000’ pages of documents that he had previously identified in correspondence to the Tribunal, whether the Additional Evidence was a subset of those documents or whether the Additional Evidence involved different material altogether. The Applicant indicated that the Additional Evidence comprised around 200 pages of material which was part or some of the documents he had previously referred to. He said that the Applicant Affidavit and Additional Evidence would cover all bank statements and matters relating to the Lease, including the fact that the Lease was legally binding and that the Trust was never in receivership.
The Respondent objected to the Tribunal receiving the Applicant Affidavit or Additional Evidence. The Respondent also raised a concern that by the Applicant Affidavit and Additional Evidence was seeking to expand the grounds or scope of the review and indicated that they opposed any such expansion. The Respondent said:
(a)The Applicant had referred to having 3000 pages of documents in January 2024 and the Respondent had agreed to view that material, however those documents had not been provided to the Respondent.
(b)It had written to the Applicant in June 2024 with questions in relation to the appointment or cessation of appointment of PWC as a receiver.[43] It had not put forward any contentions or argument relating to the existence of any trust or the receivership of any trust or trustee for the purposes of the hearing of the proceeding. Queries that might have been raised in the course of other dispute resolution processes were not part of its case before the Tribunal.
(c)It had not received a copy of a signed version of the Lease but had included an unsigned copy in the hearing book filed with the Tribunal.[44] Similarly, the question of whether a signed copy of the Lease had been provided to the Respondent or Tribunal was not part of its case.
(d)It had indicated that it wished to cross-examine Mr Stephens on the content of his expert report in relation to several issues, including the facts assumed by him in preparing his report and whether there was proof of lease payments having been made in accordance with the Lease.
(e)It did not agree that the scope of the proceeding should be extended to address the characterisation of the Vehicle as a ‘car’ or other alternative basis for deduction of vehicle related expenses. It had discussed with the Applicant’s Lawyers in 2024 whether the Applicant wished to put an alternative argument based on the ‘general deduction’ provision of section 8-1 of the ITAA 1997, but the Applicant had not responded.
[43] This appears to refer to correspondence exchanged in the context of an alternative dispute resolution process.
[44] T43.
The Tribunal asked the Applicant whether, if it refused to receive the Applicant’s Affidavit and Additional Evidence, he was willing to proceed with the hearing on the basis of addressing the Respondent’s contentions in relation to Division 28 and the Car Expenses. The Applicant said he could not or would not proceed on that basis. The Tribunal then asked the Applicant whether he understood that if he said that he could not or would not proceed with the hearing, there was a risk that the Tribunal might dismiss the proceeding. He confirmed that he understood that potential outcome.
The Tribunal adjourned the hearing[45] for the Member to consider the Applicant’s request that the Applicant Affidavit and Additional Evidence be received by the Tribunal for the purposes of the proceeding.
[45] The hearing was adjourned around 11.20 am and resumed at 2 pm.
For the reasons set out below the Tribunal decided that it would not give the Applicant leave to file or tender these further materials and this decision was communicated to the parties when the hearing resumed. The Tribunal then turned to the issue of how the hearing might proceed or the application otherwise be resolved.
The Respondent said:
(a)It wanted the proceeding resolved with some finality.
(b)Although it would have preferred to examine Mr Stephens on aspects of his report, it would be willing to forego cross examination of Mr Stephens and rely on its submissions in relation to the reliability and relevance of his written report, in the interests of progressing the hearing.
(c)As set out in its SFIC the Respondent understood that the Applicant was only seeking review of the Objection Decision as it related to the Car Expenses. The Respondent had set out its contentions and the facts on which it relied in its SFIC. The Respondent was willing and ready to proceed with a hearing of the operation of Division 28 to the Applicant’s circumstances.
(d)However, the Respondent was not willing to debate the question of whether the Vehicle was a ‘car’ as the Applicant had had the opportunity to engage on that point.
(e)The Respondent also indicated that it might be in a position to address the issue of Travel Expenses should the hearing proceed.
In response the Applicant said that if the Tribunal was not willing to accept the Applicant Affidavit and Additional Evidence, he did not see any point to proceeding with the hearing.
The Tribunal asked the Applicant again whether he would consider engaging on the topic of the Car Expenses and the operation of Division 28. The Applicant said he had no arguments to put in relation to Division 28. Absent being allowed to provide the Additional Evidence, the Applicant said he ‘had nowhere to go’ with his case.
A discussion about the dismissal of the proceeding by the Tribunal followed. The Tribunal cannot provide legal advice to parties but at this point it was appropriate for the Tribunal to outline the potential actions that the Tribunal might take having regard to the circumstances of this proceeding.
Under section 100 of the ART Act, the Tribunal may dismiss an application if the applicant fails to proceed with its application or comply with the ART Act or an order of the Tribunal within a reasonable time. Under paragraph 101(1)(b) the Tribunal may also dismiss an application if the Tribunal is satisfied that the application has no reasonable prospects of success.
The Tribunal made an initial observation that the Applicant’s clear statements to the effect that he was unable or unwilling to address the Respondent’s case at the hearing could amount to a concession by him that his application had no reasonable prospects of success.
The Respondent also observed that it would be open to the Tribunal to make a decision affirming the Objection Decision under paragraph (a) of section 105 on the basis that the Applicant’s inability or refusal to address the contentions in the Respondent’s SFIC, or to provide any further evidence or submissions to the Tribunal at the hearing, meant that the Applicant had not discharged his burden of proof that the Amended Assessments and Penalty Assessments were excessive or incorrect (and what those assessments should have been).
Alternatively, the Respondent noted that there had been instances of apparent non-compliance by the Applicant with the directions of the Tribunal during the course of the proceeding, which might also indicate that the Applicant had failed to proceed with his application within a reasonable time.
The Tribunal observed that the consequences for the Applicant of a dismissal under sections 100 or 101 were different to those which would arise from the Tribunal making a decision under section 105 to affirm the Objection Decision. In the case of a dismissal, it was possible for the Applicant to apply to the Tribunal for reinstatement of his application should he be able to meet certain criteria.[46] If the Tribunal made a decision to affirm the Objection Decision and the Applicant wished to dispute that decision, it would most likely require an ‘appeal’ to the Federal Court.
[46] See section 102 of the ART Act which provides for the circumstances in which a Tribunal may reinstate an application after it has previously been dismissed. This could include circumstances where the Applicant was able to demonstrate that the application had been dismissed in error.
The Tribunal adjourned the hearing briefly to allow the Applicant to consider what had been raised and to speak with his support person.
After the adjournment the Applicant confirmed to the Tribunal that on the basis of the Tribunal refusing to receive the Applicant Affidavit and Additional Evidence, he was unable or unwilling to put a case to the Tribunal or address the Respondent’s contentions as set out in the Respondent’s SFIC.
The Tribunal confirmed that it intended to dismiss the application under paragraph 101(1)(b) of the ART Act and would provide a decision to the parties to this effect.
PROCEDURAL QUESTIONS
Should the Applicant be given leave to provide the Applicant Affidavit and Additional Evidence to the Tribunal?
The Tribunal has had regard to the following obligations and powers of the Tribunal:
(a)The objective of the Tribunal as set out in section 9 of the ART Act is to provide an independent mechanism of review that is ‘fair and just’, ‘ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense as a proper consideration of the matters before the Tribunal permits’ and ‘promotes public trust and confidence in the Tribunal’.
(b)The Tribunal must ensure that each party to a proceeding in the Tribunal is given a ‘reasonable opportunity’ to present the party’s case and make submissions and adduce evidence: subsection 55(1).
(c)In a proceeding for review of a decision the Tribunal may determine the scope of the review by limiting the questions of fact, the evidence and the issues that it considers: section 53.
(d)The procedure of the Tribunal in a proceeding is within the discretion of the Tribunal, but in exercising that discretion the Tribunal must have regard to the circumstances of the proceeding: section 49.
(e)The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it considers appropriate: section 52.
(f)As far as practicable the Tribunal must conduct each proceeding in a way that is accessible for the parties, taking into account the needs of the parties: section 51.
(g)The Tribunal must act with as little formality and technicality as a proper consideration of the matters before the Tribunal permits: subsection 50(1).
Although the Tribunal is not bound by the rules of evidence, the obligation to provide parties with procedural fairness is a significant reason for the Tribunal to conduct proceedings in a manner consistent with rules of evidence. The need to consider the probative value of evidence is one such example.[47]
[47] Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64 per Brennan J as President of the former Administrative Appeals Tribunal.
The Tribunal observes that:
(a)The Respondent’s SFIC does not raise any issue or contention in relation to the existence of the Trust or whether the Trust was subject to any form receivership. Paragraph 7 of the Respondent’s SFIC simply refers to a lease with ‘the Trust.’
(b)The Objection Decision does not suggest any issue relating to the existence of the Trust. The facts set out in the Objection Decision recite that the Vehicle was purchased by the Macdonald Warry Family Trust and that the Applicant’s wife was the trustee of that Trust.[48]
(c)The only references in the Objection Decision to bankruptcy or receivership are to the personal bankruptcy of the Applicant in 2014 (which the Tribunal understands is not in dispute) and the receivership of Bridgeport (which is a different entity to the Trust).
(d)As noted above, the Applicant and his wife had a second Landcruiser for personal use and Mr Stephen’s expert report provides analysis in relation to both the Vehicle and the personal use Landcruiser. Mr Stephen’s report states that the Vehicle was provided by the Trust to the Applicant.[49] The report also notes that the personal use Landcruiser was purchased by Bridgeport around 2011.[50] The personal use Landcruiser is not the subject of the Objection Decision or this proceeding.
(e)The Objection Decision refers to the receivership of Bridgeport in relation to the inclusion of certain amounts[51] in the cost base of the Rental Properties that were sold. The receivership of Bridgeport is not a matter raised in the Respondent’s SFIC and is unrelated to the Car Expenses.
(f)The Additional Evidence appears to incorporate at least part of the material that the Applicant had previously told the Tribunal and the Respondent that he would file with the Tribunal in January 2024. He was directed by the Tribunal to file the evidence upon which he would seek to rely at the hearing under the January 2024 Directions, the March 2024 Directions, the June 2024 Directions and the August 2024 Directions. This includes extensions of time given in response to requests by the Applicant’s Lawyers for additional time to review documents and conduct further investigations into the Lease. These directions indicate that he was given several extensions of time by the Tribunal to provide this material, but ultimately, he did not do so.
(g)It was not clear to the Tribunal precisely when the Applicant first sought to prepare the Applicant Affidavit and Additional Evidence. He indicated at various points during the hearing that it may have been a couple of days before the hearing (that is, when the Tribunal contacted the Applicant’s Lawyers) or a few weeks prior or possibly months previously. The first indication to the Tribunal that there might be further evidence from the Applicant was received the day before the hearing. This was not communicated formally or in writing but in the course of a telephone discussion between a Tribunal Officer and the Applicant’s Lawyers (who were apparently his former lawyers by this time). The Respondent advised the Tribunal that they also only received notice of this further material the day before the hearing.
[48] T2, pages 9 and 10.
[49] See page 7 of Mr Stephens’ report. Annexure 2 to the report contains a copy of the invoice dated 19 August 2014 for the sale of the Vehicle to the Trust.
[50] Page 6 of Mr Stephens’ report and Annexure 1.
[51] This includes legal fees paid to the Applicant’s Lawyers.
The Tribunal was mindful that the Applicant was self-represented at the hearing, although he may have received some informal support or assistance from his former legal representatives.
Based on the Applicant’s description of the Applicant Affidavit and Additional Evidence, the Tribunal is not satisfied that this material has substantial (if any) relevance to the issues before the Tribunal. There was no issue relating to a receivership of the Trust before the Tribunal, nor was any such question raised in the Objection Decision subject to review. Regardless of what might have been discussed on a ‘without prejudice’ basis during the course of an alternative dispute resolution process, the Objection Decision and the Respondent’s case as set out in its SFIC has proceeded on the basis that the Trust existed at all relevant times. Similarly, the Objection Decision assumes, and the Respondent’s case has proceeded on the basis that, the Lease existed.
The Applicant told the Tribunal that he would not be addressing the Respondent’s contentions relating to Division 28 and the ‘logbook’ issues.
The Tribunal believes that the Applicant has been provided with (more than) a ‘reasonable opportunity’ to present his case to the Tribunal and provide his evidence and submissions for the purposes of section 55 of the ART Act. The procedural history of this matter set out at paragraphs 30 to 57 above outlines several extensions of time granted by the Tribunal for filing of materials. The explanations given by the Applicant for these delays in filing and rescheduling of case events included extended periods of holidays taken by the Applicant. Even in circumstances where there may have been a significant volume of documents to be compiled in relation to his claims, the Applicant has had since April 2023 to make arrangements for this. The Applicant did not provide any satisfactory explanation for failing to file his SFIC as directed.
The Tribunal does not believe that allowing an Applicant to provide additional (and apparently substantial) evidence and submissions the day before a final hearing of the proceeding would promote public trust and confidence in the Tribunal, its processes or procedures, particularly in circumstances where the Applicant has had ample opportunity to file this evidence and submissions and has not complied with Tribunal directions. Although the Applicant represented himself at the hearing, he had legal representation from February 2024 until at least October 2024 when most of the dates set down by the Tribunal for compliance with filing and other procedural matters occurred. The Applicant’s Lawyers had written to the Tribunal confirming that they were undertaking an extensive review of the Applicant’s evidence for this purpose.
For similar reasons, allowing the Applicant to provide such material at this time would not be ‘fair and just’ to the Respondent. The Respondent has complied with the provisions of the ART Act and directions of the Tribunal and had filed its SFIC and prepared for the hearing based on the limited material that the Applicant had filed. It would not be fair to the Respondent to ask them to address multiple new grounds or contentions at this late stage. To allow the Respondent a ‘reasonable opportunity’ to put submissions in response would require an adjournment of the hearing which would put the Respondent to additional cost.
There is no good reason to further extend this proceeding by an adjournment of the hearing for the potential introduction of new grounds or contentions by the Applicant. This would be contrary to the objective of the Tribunal to resolve matters as quickly and with as little expense as appropriate, in the context of the Applicant having had ample opportunity to put his case and his supporting evidence to the Tribunal. On more than one occasion he chose to prioritise his personal travel.
Having regard to these matters the Tribunal’s view is that under sections 49 and 53 of the ART Act will decline to receive the Applicant Affidavit or Additional Evidence.
Should the Tribunal dismiss the proceeding or make a decision on the reviewable decision?
Section 100 of the ART Act provides that:
The Tribunal may dismiss an application made to the Tribunal if the applicant fails to do either of the following within a reasonable time:
(a) proceed with the application;
(b) comply with this Act or an order of the Tribunal in relation to the proceeding in relation to the application.
Subsection 101(1) provides that:
(1) The Tribunal may, at any time, dismiss an application made to the Tribunal if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospects of success; or
(c) is otherwise an abuse of the process of the Tribunal.
Where an application proceeds, section 105 provides that:
In relation to the reviewable decision, the Tribunal must make a decision:
(a) affirming the reviewable decision; or
(b) varying the reviewable decision; or
(c) setting aside the reviewable decision and:
(i) making a decision in substitution for the reviewable decision; or
(ii) remitting the matter to the decision‑maker for reconsideration in accordance with any orders or recommendations of the Tribunal.
The power of the Tribunal to dismiss an application without proceeding to review the reviewable decision has been described as being in aid of the objective of the Tribunal: Charara v Commissioner of Taxation (‘Charara’).[52] In Charara Wigney J observed that the discretion to dismiss an application must be exercised ‘sparingly’ and as a ‘last resort.’ The Tribunal should consider whether dismissal is the correct approach or whether it might be more appropriate, for example to adjourn the proceeding. The Tribunal must afford the applicant procedural fairness, which would extend to giving the applicant the opportunity to make submissions as to why the matter should not be dismissed or why they had not complied with a direction, or potentially to allow the applicant a further opportunity to remedy their default.[53] Where an applicant does provide explanations or arguments, the Tribunal must take these into account.[54]
[52] Charara v Commissioner of Taxation [2016] FCA 451 at [75] per Wigney J.
[53] Ibid at [79] to [80].
[54] Ibid at [82].

Nevertheless, there may be circumstances in which the applicant might be viewed as having forfeited their right to make submissions as to why their matter should not be dismissed. The particular facts and circumstances of the case will determine what form of procedural fairness is required.[55]
[55] Ibid at [81].
The Tribunal has previously indicated that if proceedings have ‘no reasonable prospect at all of success’ they should be dismissed on the basis that it would be futile for them to continue.[56] For there to be no ‘real’ prospect of success of a given application, there must be ‘a high degree of certainty about the ultimate outcome of the proceeding’ if it were to proceed to hearing in the usual way. This would involve an assessment of the merits of an application to determine whether any reasonable contention or line of argument can be sustained.[57]
[56] Re Filsell and Comcare [2009] AATA 90. This decision was made by the former Administrative Appeals Tribunal in relation to a predecessor provision to section 101(1).
[57] Kristoffersen and Secretary, Department of Social Services [2018] AATA 524 at [10] per Senior Member Tavoularis, drawing from several previous decisions of the Administrative Appeals Tribunal.
Although this proceeding has been on foot for over two years the Applicant has not filed a SFIC. Despite claiming to have significant volumes of documentary evidence in his possession he has only provided to the Tribunal a handful of copies of hotel receipts and emailed travel itineraries, together with some ‘cardholder activity statements’ for miscellaneous dates in the Relevant Years.[58] Promises by the Applicant to provide evidence on various occasions were not followed through. The expert report commissioned by the Applicant’s Lawyers was also subject to the acknowledgment of Mr Stephens that he was not given detailed and complete records for the purposes of preparing his report. Despite the Applicant stating in his hearing certificate that he intended to call Mr Stephens as a witness at the hearing, he made no arrangements for Mr Stephens to attend. This also meant that the Respondent was unable to cross-examine Mr Stephens on matters that it had identified in its SFIC.
[58] The Tribunal has also had regard to any material contained in the T Documents which had been provided by the Applicant to the Respondent during the course of the audit and objection processes.
The Applicant told the Tribunal at the hearing that he was unable or unwilling to address the Respondent’s contentions as set out in its SFIC. He was asked by the Tribunal more than once whether he wanted to make any submissions in relation to the Respondent’s case. Other than to offer an observation that he did not agree that the Vehicle was a ‘car’, he declined to make any submissions, merely reiterating his view that the issues relating to receivership of the Trust and the legally binding nature of the Lease were significant. He said that if he was not allowed to introduce additional grounds and material at the hearing he had (in his own words) ‘nowhere to go’ with his case. The Tribunal adjourned the hearing twice which gave him the opportunity to consider his position and consult with his support person.
The Applicant’s description of the content of the Applicant Affidavit and Additional Evidence which he proposed to introduce indicates that it is largely directed to matters which were not part of the factual matrix or grounds of the Objection Decision. The Respondent’s case under Division 28 was unrelated to any matter about receivership of the Trust or the form of the Lease document.
In these circumstances the Tribunal is satisfied that the Applicant’s application has no reasonable prospects of success and should be dismissed under paragraph 101(b).
In relation to paragraph (b) of section 100, the Applicant did not comply with the various directions of the Tribunal for filing of his SFIC and further evidence. It is arguable that the appropriate time for the Tribunal to have addressed this would have been when the Respondent identified the failure of the Applicant to file a SFIC in October 2024 or when the Respondent filed its own SFIC in December 2024 noting it had to rely on limited information from the Applicant. It is not clear to the Member constituted to hearing this matter why the Applicant’s apparent non-compliance was not dealt with then.
Similarly in relation to paragraph (a) of section 100 although the history of this matter gives the Tribunal significant doubt about the commitment of the Applicant to proceeding with his application within a reasonable time, the Applicant did ultimately appear at the hearing albeit with the view of presenting a case which did not address the Respondent’s case or appear aligned to his original application. Further, the Tribunal queries whether the Applicant would have appeared but for the effort made by the Tribunal Officer to remind the Applicant of the upcoming hearing. The Tribunal believes that although circumstances for dismissal under section 100 might have existed, paragraph 101(b) is a more appropriate basis for dismissal of the application.
The Tribunal agrees that it might have been possible for it to make a decision under paragraph (a) of section 105 affirming the Objection Decision. This is because section 14ZZK of the TAA 1953 places the burden of proof on a taxpayer to demonstrate that an assessment the subject of an objection decision is excessive or otherwise incorrect, and what that assessment should have been. If a taxpayer upon review of an objection decision by the Tribunal simply does not engage with the grounds stated in the objection decision, it is arguable that they have not satisfied their burden of proof.
However, in the present circumstances the Objection Decision traverses a number of grounds (as described in paragraph 27 above). The Respondent’s SFIC addressed the grounds relating to Car Expenses, and this was the case it prepared for hearing, although the Respondent’s representative indicated that he would also be willing to address the issue of Travel Expenses if that assisted the Tribunal. As the Applicant had described his application to the Tribunal in terms of motor vehicle costs, logbooks and work use of the Vehicle and he did not file a SFIC or other material suggesting other grounds, it was logical for the Respondent to have limited its case in this proceeding to the Car Expenses issues. The Tribunal nevertheless hesitates to simply affirm the Objection Decision in circumstances where only one aspect of the overall Objection Decision was brought to the hearing. The Tribunal emphasises that this was not the fault of the Respondent.
CONCLUSION
The Tribunal will not receive the Applicant Affidavit and Additional Evidence. Based on the statements of the Applicant at the hearing and the procedural history of the application before the Tribunal, the Tribunal is satisfied that the application has no reasonable prospects of success and should be dismissed.

[2025] ARTA 836

18 June 2025

Key Legal Topics

Areas of Law

Taxation Law

Legal Concepts

Taxation - Practice and Procedure

Limitation Periods

Admissibility of Evidence

Procedural Fairness