//
[2017] AATA 1642
General information, not legal advice.
Administrative Appeals Tribunal of Australia
2017-10-09
Original judgment source is linked above.
I certify that the preceding 144 (one hundred and forty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter
.................[sgd]............................................
[1] Exhibit 1, T Documents, T 3-15, Tax Agent Application for renewal registration - Statement of Facts dated 13 October 2016, [1.1].
[2] Exhibit 1, T Documents, T3-117, Canehire Pty Ltd & Anor v Themis Holdings Pty Ltd [2014] QCA 296, [6], (Muir JA).
[7] Exhibit 1, T Documents, T3-118, Canehire Pty Ltd & Anor v Themis Holdings Pty Ltd [2014] QCA 296, [12], (Muir JA).
[12] Exhibit 1, T Documents, T3-46, Themis Holdings Pty Ltd v Canehire Pty Ltd & Anor [2014] QSC 38, [2].
[13] Exhibit 1, T Documents, T3-52, Themis Holdings Pty Ltd v Canehire Pty Ltd & Anor [2014] QSC 38, [39].
[14] Exhibit 1, T Documents, T3-102-103, Themis Holdings Pty Ltd v Canehire Pty Ltd & Anor [2014] QSC 38, [196].
[15] Exhibit 1, T Documents, T3-104, Themis Holdings Pty Ltd v Canehire Pty Ltd & Anor [2014] QSC 38, [202].
[18] Exhibit 1, T Documents, T3-105, Themis Holdings Pty Ltd v Canehire Pty Ltd & Anor [2014] QSC 38, [209].
[20] Exhibit 1, T Documents, T3-108, Themis Holdings Pty Ltd v Canehire Pty Ltd & Anor [2014] QSC 38, [224].
[21] Exhibit 1, T Documents, T3-75, Themis Holdings Pty Ltd v Canehire Pty Ltd & Anor [2014] QSC 38, [114].
[22] Exhibit 1, T Documents, T3-84, Themis Holdings Pty Ltd v Canehire Pty Ltd & Anor [2014] QSC 38, [134].
[23] See Exhibit 1, T Documents, T3-114-130, Canehire Pty Ltd & Anor v Themis Holdings Pty Ltd [2014] QCA 296.
[24] Exhibit 1, T Documents, T 3-22, Chartered Accountants Australia and New Zealand, findings of Professional Conduct Tribunal concerning Mr Ham dated 21 October 2015.
[25] Exhibit 1, T Documents, T 3-24-25, letter from the Tax Practitioners Board to Mr Ham dated 5 May 2016.
[26] Exhibit 1, T Documents, T 3-19-21, Mr Ham's online application for renewal of registration.
[27] Exhibit 1, T Documents, T 3-26-28, Mr Ham's letter to the Tax Practitioners Board dated 15 June 2016.
[30] Exhibit 1, T Documents, T 3-28, Mr Ham's letter to the Tax Practitioners Board dated 15 June 2016.
[31] Exhibit 1, T Documents, T 1-8-13, letter from Tax Practitioners Board to Mr Ham dated 26 October 2016.
[32] See SRBP and Tax Practitioners Board [2016] AATA 456, [41] (SM O'Loughlin).
[33] See Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, at [99] (Hayne and Heydon JJ); at [143] (Kiefel J); and Crennan J agreeing at [117].
[34] See _Tax Agent Services Act 2009 (_Cth), s 20-5(1)(a).
[38] See Tax Practitioners Board Explanatory Paper TPB (EP) 02/2010 Fit and proper person (updated on 9 March 2017) [101].
[40] [1990] HCA 33; (1990) 170 CLR 321, 380.
[41] (1982) 13 ATR 192, 195. Emphasis added.
[44] See Tax Practitioners Board Explanatory Paper TPB (EP) 02/2010 Fit and proper person (updated on 9 March 2017), [108]; and Re Kerin and Tax Agents' Board (SA) [2009] AATA 764; (2009) 113 ALD 530 (SM Dunne).
[45] Stasos v Tax Agents' Board of New South Wales [1990] FCA 379; (1990) 21 ATR 974, at 983. (Hill J). Some case citations omitted. Emphasis added.
[47] See Carter and Tax Practitioners Board [2017] AATA 528, [58] (DP Humphries).
[48] See Exhibit 5, witness statement of Philip Robert Ham dated 12 July 2017.
[60] Transcript of proceedings dated 9 August 2017, page 6, lines 14-16.
[63] Transcript of proceedings dated 9 August 2017, page 7, lines 23-24.
[64] Ibid, page 7, lines 46-47 and page 8, lines 1-39.
[67] Exhibit 6, Statement of William J Lucas dated 12 July 2017.
[68] Exhibit 7, Statement of Steve Miotti dated 19 July 2017.
[69] Exhibit 8, Statement of Annie Fredericks, undated.
[70] Exhibit 9, Statement of Fr Leo Coote, undated.
[71] Outline of Argument for the Applicant, undated, [25].
[80] Transcript of proceedings dated 9 August 2017, page 19, lines 16-47 and page 20, lines 1-2.
[82] Re Grosfeld and Tax Practitioners Board (2014) 94 ATR 643 (SM Redfern); and Kishore and Tax Practitioners Board [2017] AATA 271 (DP Frost).
[83] Transcript of proceedings dated 9 August 2017, page 20, lines 25-27 and 30-35.
[84] Exhibit 1, T Documents, T3-104-108, Themis Holdings Pty Ltd v Canehire Pty Ltd & Anor [2014] QSC 38, [202], [204], [206], [211] and [224].
[85] Transcript of proceedings dated 9 August 2017, page 21, lines 5-47, p 22 lines 1-25.
[87] Ibid, page 22, lines 36-39 and Exhibit 11, Submissions of the Board dated 7 August 2017, [44].
[88] Exhibit 11, Submissions of the Board dated 7 August 2017, [50].
[92] Outline of Argument for the Applicant, undated, [17].
[93] Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247, 256 (Brennan J, President).
[94] (1933) 50 CLR 228, 256 (Evatt J).
[95] [2001] FCA 237; (2001) 183 ALR 700, [45]-[50] (Cooper, Whitlam and Tamberlin JJ).
[96] Ibid, at 715, [48]-[49]. Some case citations omitted.
[97] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362 (Dixon J).
[98] Exhibit 11, Submissions of the Board dated 7 August 2017, [16].
[99] Re Grosfeld and Tax Practitioners Board (2014) 94 ATR 643 (SM Redfern); and Kishore and Tax Practitioners Board [2017] AATA 271 (DP Frost).
[100] Transcript of proceedings dated 9 August 2017, page 20, lines 25-27 and 30-35.
[101] Ibid, page 20, lines 37-42 and page 21, lines 5-11.
[102] See Exhibit 1, T Documents, T3-105, Themis Holdings Pty Ltd v Canehire Pty Ltd & Anor [2014] QSC 38, [212].
[103] Transcript of proceedings dated 9 August 2017, page 21, lines 16-29.
[104] See Exhibit 1, T Documents, T3-104, Themis Holdings Pty Ltd v Canehire Pty Ltd & Anor [2014] QSC 38, [202].
[106] See Exhibit 1, T Documents, T3-105, Themis Holdings Pty Ltd v Canehire Pty Ltd & Anor [2014] QSC 38, [206].
[107] See Exhibit 1, T Documents, T3-108, Themis Holdings Pty Ltd v Canehire Pty Ltd & Anor [2014] QSC 38, [224].
[108] Transcript of proceedings dated 9 August 2017, page 22, lines 27-34.
[109] Outline Argument for the Applicant, undated, [29].
[110] See, for example, Exhibit 1, T Documents, T3-74 and 75, Themis Holdings Pty Ltd v Canehire Pty Ltd & Anor [2014] QSC 38, [113] and [114]-[157].
[111] See Exhibit 1, T Documents, T3-27, Mr Ham's letter to the Board dated 15 June 2016.
[112]Exhibit 1, T Documents, T3-53, Themis Holdings Pty Ltd v Canehire Pty Ltd & Anor [2014] QSC 38, [46].
[113] Macquarie Dictionary Publishers, 2017.
[114] Oxford University Press, 12th edition, 2011.
[115] Stasos v Tax Agents' Board of New South Wales [1990] FCA 379; (1990) 21 ATR 974, 985.
[116] Exhibit 1, T Documents, T3-28, letter, Mr Ham to the Board dated 15 June 2016.
[117] (1994) 34 NSWLR 408, 449.
[118] Exhibit 5, Mr Ham's statement dated 12 July 2017, [22]-[23].
[122] Exhibit 11, Board's submissions dated 7 August 2017, [51] and [52].
[123] Transcript of proceedings dated 9 August 2017, page 7, lines 46-47 and page 8, lines 1-2.
[125] Exhibit 5, Mr Ham's statement dated 12 July 2017, [26].
[128] See Exhibit 1, T Documents, T 3-27 and 28, Mr Ham's letter to the Board dated 15 June 2016.
[129] Exhibit 1, T Documents, T 1-6, Mr Ham's Application for Review of Decision dated 21 November 2016.
[130] Exhibit 4, Mr Ham's Statement of Facts, Issues and Contentions dated 19 April 2017, [7] and Exhibit 10, Mr Ham's Further Amended Statement of Facts, Issues and Contentions dated 1 August 2017, [7].
[131] Exhibit 11, Board's submissions dated 7 August 2017, [51.3].
[132] Exhibit 10, Mr Ham's Further Amended Statement of Facts, Issues and Contentions dated 1 August 2017, [14] and Exhibit 5, Mr Ham's statement dated 12 July 2017, [28].
[133] Outline of Argument for the Applicant, undated, [33].
[136] Outline of Argument for the Applicant, undated, [33]-[36].
[137] Exhibit 11, Board's submissions dated 7 August 2017, [53].
[138] Exhibit 10, Mr Ham's Further Amended Statement of Facts, Issues and Contentions dated 1 August 2017, [17].
[139] Exhibit 11, Board's submissions dated 7 August 2017, [55].
[140] Tax Agent Services Act 2009 (Cth), s 20-25(6).
Australian Broadcasting Tribunal
Bond
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Canehire Pty Ltd & Anor v Themis Holdings Pty Ltd [2014] QCA 296
Carter and Tax Practitioners Board [2017] AATA 528
Hughes and Vale Proprietary Limited v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127
Re Kerin and Tax Agents' Board (SA) [2009] AATA 764; (2009) 113 ALD 530
Kishore and Tax Practitioners Board [2017] AATA 271
National Mutual Life Association of Australasia Ltd and Others v Grosvenor Hill (formerly Hillier, Parker (Qld) Pty Ltd and Another [2001] FCA 237; (2001) 183 ALR 700
Li and Tax Practitioners Board [2014] AATA 299
Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
SRBP and Tax Practitioners Board [2016] AATA 456
Stasos v Tax Agents' Board of New South Wales [1990] FCA 379; (1990) 21 ATR 974
Themis Holdings Pty Ltd v Canehire Pty Ltd & Anor [2014] QSC 38
Where the issue is whether a person, who has been guilty of misconduct is at a time somewhat after that misconduct a fit and proper person to exercise a particular occupation carrying with it privileges and responsibilities, it will be relevant whether that person has understood the error of his ways. Failure to do so would, of itself, demonstrate his unfitness: NSW Bar Assoc v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 184. Thus, where a legal practitioner has been struck off and subsequently seeks readmission to the profession, he may lead evidence that he has redeemed his earlier errors and demonstrate that they did not reflect any permanent defect in character: Ex parte Lenehan [1948] HCA 45; (1948) 77 CLR 403 at 424. It will as Lenehan demonstrates, be a step on the way, to show that the applicant now understands that what he did was in error. Failure to admit the error of his ways, and thereby to show his contrition was fatal to the application made by Mr Clyne to be readmitted: see Ex parte Clyne...
It may be noted that in the proceedings in the Supreme Court in Clyne, Sugerman J said at 8 of his Honour's judgment:
The court must be convinced that there has been a complete repentance and a determination to persevere in honourable conduct - see In re Weare [1893] 2 QB 439 at 447.[45]
...a person who has been shown to be other than a fit and proper person to be registered must satisfy the Tribunal considering his re-registration or cancellation of his registration as the case may be, that he appreciates the significance of his wrongdoing, that he regrets it and that he has rehabilitated himself such that it is truly unlikely that there will be any lapse in the future of the standards which are required of him. The more serious his dereliction from duty the longer may be the time necessary to show this. It will not be sufficient for him to merely express his contrition. The Tribunal must be satisfied on the balance of probabilities that not only is that contrition actually felt, but that he will not again deviate from the high standards required of him as a registered tax agent
The observations of White J as to the conduct of Richardson, his reliability as a witness, and as to the adequacy of the available documentation in proceedings between different parties as to different valuations made by different valuers at different points in time, even if there are some factual overlaps between the two proceedings, are in truth statements of opinion which are irrelevant to the proceedings in this court: Hollington v F Hewthorn & Co [1943] KB 587 at 594-7...; Land Securities Plc v Westminster City Council [1993] 1 WLR 286 at 288.[96]
(1990) 170 CLR 321
(1938) 60 CLR 336
(1955) 93 CLR 127
(2001) 183 ALR 700
(1994) 34 NSWLR 408
(1979) 26 ALR 247
(1933) 50 CLR 228
(2008) 235 CLR 286
(1968) 117 CLR 177
(1948) 77 CLR 403