YZYJ and Commissioner of Taxation (Taxation)
[2018] AATA 672
•22 March 2018
YZYJ and Commissioner of Taxation (Taxation) [2018] AATA 672 (22 March 2018)
Division:TAXATION & COMMERCIAL DIVISION
File Number: 2017/0184
Re:YZYJ
APPLICANT
AndCommissioner of Taxation
RESPONDENT
DECISION
Tribunal:Deputy President Bernard J McCabe
Date:22 March 2018
Date of written reasons: 23 March 2018
Place:Sydney
The application for the reinstatement of the application for review is dismissed.
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Deputy President Bernard J McCabe
CATCHWORDS
PRACTICE AND PROCEDURE – power to reinstate an application for review – notice of withdrawal filed by applicant – application taken to be dismissed pursuant to section 42A(1B) – withdrawal due to perceived member bias – whether application dismissed in error – power to reinstate where if error identified– reinstatement application prospects of success - reinstatement application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 42A(1B), 42A(10)
CASES
Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367
Walls and Comcare [2015] AATA 697
REASONS FOR DECISION
Deputy President Bernard J McCabe
23 March 2018
On 31 January 2018, following a two day hearing before another Tribunal member, the applicant lodged a notice informing the Tribunal the application for review was being withdrawn. Upon receipt of that notice the proceedings were taken to be dismissed pursuant to s 42A(1B) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The applicant’s director now says the decision to withdraw was prompted by his perception that the applicant was unlikely to succeed in obtaining a favourable outcome from the review proceedings. The director says the presiding member in those proceedings appeared biased against the applicant. Amongst other things, the director recalled the member had indicated she was considering whether it would be appropriate to increase an administrative penalty imposed by the Commissioner of Taxation. The director said his lawyer gave him advice on prospects. The director says he thinks that advice may have been defective. In any event, the applicant has now asked the Tribunal to reinstate the earlier proceedings.
A firm of solicitors contacted the Tribunal on the morning of the reinstatement hearing to advise they had recently been engaged to represent the applicant. The firm asked for an adjournment of the reinstatement application hearing so they would have the time to properly consider their client’s position. I declined to give an adjournment at that point. I indicated to the parties through my associate that I would entertain a request for an adjournment at the hearing but that my decision would be informed by a range of considerations, including the likelihood the reinstatement application would succeed.
When the matter came on for hearing, I was told the director appeared for the applicant because the new solicitors were unable to attend.
I questioned the director about the circumstances surrounding the reinstatement application and the need for an adjournment. I pointed out the Tribunal’s power to reinstate an application for review is limited in cases like this one: once a matter was dismissed pursuant to s 42A(1B) of the AAT Act, the only power to reinstate is found in s 42A(10). That sub-section permits the Tribunal to reinstate an application for review where it appears the application has been dismissed in error.
The Tribunal and the Federal Court have considered the meaning of the expression “dismissed in error” in a number of cases. The leading authority is Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367, but there are others. The authorities make it clear the expression is not limited to simple administrative errors on the part of the Tribunal - where, for example, a clerical or computer error or miscommunication in the registry resulted in the wrong matter being dismissed. There have also been cases where the power to reinstate has been exercised following a miscommunication between the applicant and his lawyers that resulted in dismissal in the absence of administrative error on the part of the Tribunal: Walls and Comcare [2015] AATA 697.
I would not want to delimit the sort of errors that might provide a basis for an application under s 42A(10) but all successful applications have at least this in common: the dismissal must have occurred in error. That is the problem for the applicant in this case. On the director’s account, he felt the applicant was unlikely to succeed at the hearing in light of what the director took to be bias on the part of the presiding member. The director says the applicant’s lawyers warned of the potential adverse consequences if the application did not succeed. But who is to say the director’s assessment – or that of the applicant’s lawyers – was wrong? The applicant elected to adopt a conservative approach and withdraw rather than waiting for the outcome of the proceedings. That is a tactical decision. While the applicant may have come to believe he made an error of judgment that he now regrets, I am not satisfied the withdrawal could be regarded as an error in those circumstances – and certainly not an error within the meaning of s 42A(10).
In the circumstances, given my view of the merits of the reinstatement application, I did not think it was appropriate to grant an adjournment. Holding the matter over for another day would serve no purpose. The most appropriate course was to deal with the reinstatement application at the hearing listed for that purpose.
I do not have the power to reinstate the earlier application under s 42A(10) if I am not satisfied the proceedings were dismissed in error.
In reaching that view, I did not feel it was necessary to review the transcript of the earlier proceedings to determine if there was any substance to the applicant’s allegation of bias. If the applicant felt it was the victim of bias, there are steps which could have been taken at the time, or following an adverse decision. The applicant’s lawyers could have advised it about all that. I note one example the applicant gave of the perceived bias tended to suggest the proceedings were, in fact, conducted with scrupulous care. I refer to the applicant’s complaint that the presiding member flagged she was considering imposing a higher administrative penalty than the one imposed by the Commissioner. The applicant suggested that showed the member was not impartial. But that submission misunderstands the Tribunal’s role. The Tribunal is obliged to reach the correct or preferable decision on the material before it at the hearing. If that material suggests a different outcome is appropriate, the Tribunal should make its decision accordingly. Where the Tribunal is considering an outcome that leaves the applicant in an even worse position than it was in as a consequence of the decision under review, the presiding member might feel obliged to warn the applicant of that prospect so the applicant may consider withdrawing rather than taking its chances – which is what occurred here.
I do not need to reach a concluded view about the conduct of the earlier proceedings. I am not satisfied there is an error that would enliven the power to reinstate the application under s 42A(10).
I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe
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Associate
Dated: 23 March 2018
Date of hearing: 22 March 2018 Advocate for the Applicant: [redacted] Solicitor for the Respondent: Mr D Nesci