Ziolkowski and Commissioner of Taxation (Taxation)

[2024] AATA 2857

Ziolkowski and Commissioner of Taxation (Taxation) [2024] AATA 2857 (13 August 2024)

Division:TAXATION AND COMMERCIAL DIVISION

File Number:          2019/0240, 2019/0241

Re:Thomas Ziolkowski

APPLICANT

AndCommissioner of Taxation

RESPONDENT

DECISION

Tribunal:Senior Member R Olding

Date:13 August 2024

Place:Sydney

The application for review is dismissed under section 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth).

..............................[SGD]..............................

Senior Member R Olding

Catchwords

PRACTICE AND PROCEDURE – where applicant repeatedly failed to comply with the Tribunal’s directions – application for review dismissed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), s 2A, 42A(5)

Cases

Ziolkowski and Commissioner of Taxation [2023] AATA 292

REASONS FOR DECISION

Senior Member R Olding

13 August 2024

1. In the 5 ½ years that have passed since this application for review was filed on 11 January 2019, the applicant, Dr Ziolkowski, has repeatedly failed to comply with the Tribunal’s directions. More recently, the applicant has failed to engage meaningfully with his lawyers to the point that it became untenable for them to continue to represent him in the proceedings.

2. On 14 August 2020, Senior Member P W Taylor SC dismissed the application after taking into account ‘the lamentable procedural history of the application, in particular, Dr Ziolkowski’s repeated failure to comply with procedural directions’ and his failure to appear on a telephone directions hearing listed for that day.[1]

   [1] Ziolkowski and Commissioner of Taxation [2023] AATA 292, [12].

3. Senior Member Taylor was persuaded to reinstate the application on 2 March 2023, on the basis set out in detailed reasons published as Ziolkowski and Commissioner of Taxation [2023] AATA 292.

4. Regrettably, despite the efforts of his lawyers, Dr Ziolkowksi continued to be non-compliant with various procedural directions made for the purpose of advancing the matter to hearing.

5. On 17 July 2023, I directed the applicant to comply with all outstanding directions and noted that, if the applicant did not comply with this direction, the application could be dismissed without further notice. Dr Ziolkowski did not comply with this direction.

6. Further communications with the applicant’s then counsel, Ms Louise McBride, occurred as Ms McBride endeavoured to assist Dr Ziolkowksi and the Tribunal. Ultimately, on 9 April 2024, I issued directions inviting submissions as to whether the matter should be dismissed for failure to proceed with the application and failure to comply with the Tribunal’s directions.  Ms McBride continued to encourage Dr Ziolkowski to comply with the outstanding directions. Dr Ziolkowski did not respond in any positive way to Ms McBride’s urging or to the Tribunal’s directions.

7. Section 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) states:

   If an applicant for a review of a decision fails within a reasonable time:

   (a) to proceed with the application; or

   (b) to comply with a direction by the Tribunal in relation to the application;

   the Tribunal may dismiss the application without proceeding to review the decision.

8. It is clear that, in the circumstances outlined above, the dismissal power is engaged. Dr Ziolkowski has failed to comply with directions made by the Tribunal within a reasonable time or, indeed, at all. As he has ceased engaging with the Tribunal, it could also be said that Dr Ziolkowski has failed to proceed with the application.

9. In view of the history outlined above and detailed in Senior Member Taylor’s reasons for the reinstatement, I am also satisfied it is appropriate for the application to be dismissed under s 42A(5). This matter has consumed an excessive amount of public resources in an attempt to assist Dr Ziolkowski to exercise his review rights. At a quick count, I identified around 22 case events – directions hearings and conciliations – that have been scheduled over the years. Consistent with the Tribunal’s statutory objectives of providing a review that is accessible and fair but also economical and quick,[2] it is time – arguably, well past time - to bring it to an end.

   [2] Administrative Appeals Tribunal Act 1975 (Cth), s 2A.

10. The outcome is no reflection on Ms McBride who, in trying circumstances, went considerably beyond the usual efforts of counsel to assist Dr Ziolkowski and the Tribunal. I also record the patient accommodation extended by the respondent’s representatives. The matter calls to mind the well-known equine analogy: the representatives of both parties, and the Tribunal, made every effort to encourage the applicant to participate in the review but could not make him do so.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Olding

...................................[SGD].....................................

Associate

Dated: 13 August 2024

Date of hearing:	Decided on the papers
Advocate for the Applicant:	Self-represented
Solicitor for the Respondent:	ATO Litigation & Legal Services