TAXATION - PRACTICE AND PROCEDURE - application for review of objection decision - previous adjournment of hearing when Applicant's former representative resigned - lack of response from Applicant's representatives to Tribunal communications - no appearance by Applicant or their representative at relisted hearing - new representative for Applicant identified after hearing commenced - new representative not able to present case for Applicant at hearing - whether Applicant failed to proceed with application within a reasonable time - application dismissed.

Administrative Review Tribunal Act 2024 (Cth): sections 100, 102

Charara v Commissioner of Taxation [2016] FCA 451

1. This application was listed for a substantive hearing on 22 December 2025 at 10 am. Due to circumstances which occurred prior to and at the hearing, the Tribunal determined that it was appropriate for the application to be dismissed under section 100 of Administrative Review Tribunal Act 2024 (Cth) (the ART Act). The Tribunal said that it would provide the parties with written reasons for the dismissal, including an outline of the somewhat unusual circumstances, to assist the parties in determining any further actions they wished to take.
2. The Commissioner of Taxation (Respondent) issued an objection decision dated 10 September 2024 (the Objection Decision) to Mr Armstrong (the Applicant). The Respondent had disallowed an objection of the Applicant to his income tax assessment for the year ended 30 June 2023. Broadly, the objection related to borrowing and associated expenses claimed by the Applicant for that income year, following his refinancing of certain investment properties following his divorce.
3. The Applicant applied to the Tribunal in November 2024 for a review of the Objection Decision. The application to the Tribunal was made on his behalf by his then accountant and tax agent, Medcraft Cooper & Associates (MCA). At that time a Miss L was the employee of MCA handling the Applicant's matter, and she had also engaged with the Respondent during the earlier objection process. The Tribunal's records had Miss L's details as the appropriate contact point for the Applicant.
4. At least initially, the Tribunal proceeding followed the ordinary path of a review with the following events occurring:

(a) The Respondent filed T Documents (on 19 December 2024), Supplementary T Documents (on 23 May 2025) and Further Supplementary T Documents (on 15 December 2025) as required by section 14ZZF of the Taxation Administration Act 1953 (the TAA 1953). > > (b) The Respondent filed its Statement of Facts, Issues and Contentions and evidence on 23 May 2025 as directed by the Tribunal. > > (c) The Applicant filed its Statement of Facts, Issues and Contentions and evidence on 4 July 2025 as directed by the Tribunal. > > (d) The Respondent filed a Statement of Facts, Issues and Contentions in Reply on 8 August 2025 as directed by the Tribunal. > > (e) Both parties filed hearing certificates indicating their availability for a substantive hearing in the months of August, September and October 2025. > > (f) Based on those hearing certificates, the Tribunal listed a substantive hearing of the application on 1 October 2025.

5. On 17 September 2025 the Respondent advised the Tribunal that it had briefed counsel to appear for the Respondent at the hearing and intended to file an outline of submissions for the hearing by 24 September 2025.
6. On 18 September 2025 the Tribunal received an email from Mr Nickolas Giorgio, Managing Principal at MCA advising that Miss L had resigned from MCA and would be leaving the firm at the end of September 2025. He sought to vacate the 1 October hearing date and have it relisted 'to a future time, to be determined' to allow MCA to recruit a new staff member to take over the Applicant's matter.
7. The Tribunal wrote back to Mr Giorgio[1] on 18 September 2025 (with a copy to the Respondent) referring him to paragraphs 5.12 and 5.13 of the Administrative Review Tribunal (Common Procedures) Practice Direction 2024 (the Common Procedures Practice Direction). The Tribunal asked him to advise when he/MCA became aware of Miss L's resignation and the length of adjournment being sought by the Applicant, noting that a general reference to 'a future time' was not adequate. The Tribunal also asked the Respondent to advise its position on the adjournment request by 22 September 2025, after which the Tribunal would determine whether it was appropriate to schedule a directions hearing for further timetabling arrangements.
8. Mr Giorgio replied to the Tribunal late on 18 September 2025, confirming that Miss L had resigned on 1 September 2025, and that she would be conducting her handover up to 25 September 2025 which did not leave sufficient time to prepare for a hearing on 1 October. Mr Giorgio also indicated that the rest of October, as well as November and December 2025 were expected to be busy for his firm, as they had client commitments, were merging with another firm, were moving to new premises and undergoing a name change prior to the end of 2025. Mr Giorgio did not provide any detail or evidence in support of these matters and did not suggest a further listing day for the substantive hearing.
9. On 22 September 2025 the Respondent wrote to the Tribunal to advise that it did not oppose the Applicant's request for an adjournment but preferred that the matter be relisted before 2026. The Respondent referred to paragraph 5.15 of the Common Procedures Practice Direction which states that where the Tribunal grants an adjournment, the Tribunal will seek to re-list the matter for a hearing as soon as practicable afterward.
10. Having regard to the correspondence from both parties, paragraph 5.15 and the availability of the Tribunal in late 2025 and early 2026, the Tribunal wrote to the parties on 23 September 2025 saying that it would agree to the requested adjournment and asking the parties to confirm their availability on either 1 December or 22 December 2025. The Tribunal believed that this allowed adequate time for the Applicant's representative to make necessary staffing arrangements. The Respondent wrote to the Tribunal on 24 September 2025 confirming that it was available on either of those dates but had a preference for 22 December. The Applicant's representative did not respond to the Tribunal's correspondence.
11. On 15 October 2025 the Tribunal re-listed the hearing of this matter for 22 December 2025 at 10 am by video (MS Teams). A listing notice was sent to each party on 15 October 2025 with confirmation of the date and time, together with an instruction 'Please Join the Video Hearing as Follows' followed by an MS Teams link (and alternative means for joining the MS Teams session). The listing notice was sent to the Applicant via Mr Giorgio's contact details at MCA, the last recorded contact point for the Applicant on the Tribunal's files at that time.
12. On 2 December 2025 the Tribunal wrote to the parties asking them to advise by 5 December whether they sought to file an outline of submissions in advance of the hearing, and to confirm that no witnesses were to be called.
13. On 4 December 2025 the Respondent replied (with a copy to Mr Giorgio at MCA as above) advising that they wished to file an outline of submissions and confirming that they did not intend to call any witnesses. No response was received from the Applicant, Mr Giorgio or MCA.
14. Having not received any response from the Applicant or his representatives and with the hearing date approaching, the Tribunal tried to contact Mr Giorgio or MCA by telephone. A Tribunal Officer eventually managed to make contact with Ms Richa Karki on the general telephone number for MCA on 9 December 2025. Ms Karki advised the Tribunal Officer that Mr Giorgio had also left MCA at some point, and that she was familiar with the Applicant's matter. Ms Karki provided the Tribunal Officer with a different email address at MCA and asked that the Tribunal re-send the correspondence that it had previously sent to Mr Giorgio.
15. On 10 December 2025 the Tribunal sent Ms Karki a copy of the Tribunal's correspondence of 18 September, 23 September and 4 December 2025, together with a further copy of the listing notice dated 15 October 2025. This material was sent with a covering email which included the following information for the Applicant and its representatives:

The Applicant's representative is reminded that this matter is listed for a final hearing on 22 December 2025 ... after already having been adjourned due to staffing issues at Medcraft Cooper. The Tribunal has limited resources and should not be required to spend time locating representatives to determine their ability or willingness to comply with Tribunal listings and directions. It is also not appropriate for the Respondent to have to allocate resources to preparation for hearings which may not eventuate. > > The Tribunal is reattaching the correspondence it sent to the Applicant since its last known contact with Mr Giorgio. If the Applicant wishes to proceed with its application the Tribunal expects attendance by the Applicant and/or its representative at the hearing on 22 December 2025. Absent exceptional circumstances (for which supporting evidence will be required) such as medical incapacity, the Tribunal will not grant a further adjournment of the hearing in this application. If the Applicant does not intend to proceed with the hearing it is asked to contact the Tribunal as soon as possible.

16. The Respondent sought, and was granted, leave by the Tribunal to file a written outline of submissions. These were filed by the Respondent, with a copy to the Applicant, on 15 December 2025.
17. As no further communications had been received from the Applicant, the Tribunal again tried to contact MCA by telephone to confirm appearances for the Applicant at the hearing. This included multiple calls by a Tribunal Officer to MCA on 19 December 2025 which were not returned (or in some instances the phone was not answered).
18. On 22 December 2025, the Respondent's representatives, including Mr Lee of counsel, joined the video hearing by the 10 am start time. No representative appeared for the Applicant by 10 am.
19. At the request of the Member the Tribunal's hearing attendant tried to call MCA's telephone number but the call would not connect initially. The Tribunal's hearing attendant tried calling MCA again at 10.05 am and the telephone was answered by a person who confirmed that the Tribunal had reached Medcraft Cooper. The hearing attendant explained that the Tribunal was trying to make contact with the firm about the hearing in this proceeding. The person who answered the telephone said that she would need to check with one of the accountants and would call back. The hearing attendant provided contact details for the Tribunal but also advised that the hearing was to have started at 10 am and he would call MCA again if he had not heard back from them shortly.
20. The Member spoke to the Respondent's representatives around 10.10 am requesting their patience while the Tribunal made efforts to locate the Applicant or his representative.
21. Around 10.15 am the hearing attendant was advised by MCA that Ms Karki and possibly another person would join the hearing in approximately 5 minutes.
22. By 10.30 am the Tribunal had not had seen any attempt by MCA to join the hearing and therefore the Member asked that the hearing formally commence so that she could speak to the Respondent's representatives about the appropriate way forward in the absence of any appearance for the Applicant. At that time the Member had a concern that the Applicant may have been unaware of the actions (or inaction) of his representatives and of the hearing itself.[2] The Member explained that if the Applicant or his representative did not appear at the hearing to put a case, it was open to the Tribunal to dismiss the application. However the Tribunal was also aware that the Respondent had sought a variation to the Objection Decision which might be favourable to the Applicant.
23. Mr Lee requested a brief adjournment to seek instructions on behalf of the Respondent.
24. When the Respondent's representatives returned at 10.45 am after the adjournment, Mr Lee advised that the Respondent had received an email at 10.39 am from a Mr Phelan of Bayside Advisory Services who stated that he was now the representative of the Applicant and was trying to join the hearing in that capacity. Mr Lee provided the Tribunal with a contact number for Mr Phelan.
25. The Member decided that it was appropriate to hear from Mr Phelan in an attempt to understand the Applicant's circumstances. As Mr Phelan was apparently unable to join via the video link or other details in the Tribunal Listing notice, the Tribunal joined him by telephone.
26. Mr Phelan confirmed that he was the 'new advisor' for Mr Armstrong. The Member asked him when he had been appointed and he said in 'the last few weeks.' The Member asked what information he had received from MCA about the proceeding, to which he replied 'not much.' However he also confirmed that he was a 'part owner' of MCA[3], and that via Ms Karki there was some awareness that a hearing had been listed. The Member asked why he (or MCA) had not advised the Tribunal of the change in advisor arrangements and contact details.[4] The Member asked Mr Phelan whether the Applicant himself was aware of the correspondence and events in the Tribunal proceeding and he said that the Applicant had been made aware of what had been happening.
27. The Tribunal then asked Mr Phelan whether he was in a position to present his client's case at the hearing. Mr Phelan indicated that he had only a general understanding of what the Applicant's case was about, that materials in preparation including responses were 'half done' at this time, and they were in the process of seeking advice from a tax lawyer about the Applicant's prospects of success.
28. The Member made it clear to Mr Phelan that she was unhappy that significant Tribunal time had been absorbed in trying to locate and obtain responses from the Applicant's representatives, together with the resources allocated by both the Tribunal and Respondent in preparing for the substantive hearing which could now not take place. Mr Phelan apologised for the inconvenience caused to the Tribunal.
29. For the sake of completeness the Tribunal notes that the Respondent has complied with the Tribunal's timetabling directions and had been ready to proceed with the substantive hearing both on the original listing date of 1 October 2025 and the re-listed dated of 22 December 2025.

1. Under paragraph 100(a) of the ART Act, the Tribunal may dismiss an application made to the Tribunal if the applicant fails to proceed with the application within a reasonable time.
2. The Tribunal's discretion to dismiss an application must be exercised 'sparingly' and as a 'last resort.' The Tribunal should consider whether alternatives to dismissal would be more appropriate in the context of providing procedural fairness, such as an adjournment or giving the applicant the opportunity to make submissions or remedy a default.[5]
3. In the present circumstances the Tribunal:

(a) Has already provided the Applicant with an adjournment of almost three months to allow the Applicant's representatives to sort out their resourcing issues. > > (b) Directed the Applicant's representatives to the relevant paragraphs of the Common Procedures Practice Direction relating to adjournments. > > (c) Is satisfied that the Applicant's representatives had adequate notice of the re-listed hearing date and instructions for attending the hearing. > > (d) Made extensive attempts via email and telephone to contact the Applicant's representatives between the time that the original hearing was adjourned up to the re-listed hearing date to confirm their ongoing participation in the proceeding. > > (e) Made multiple attempts to locate the Applicant's representatives after the time that the hearing was scheduled to have commenced, to provide them with the opportunity to explain their circumstances and/or those of the Applicant. > > (f) Is satisfied, having regard to Mr Phelan's indication that the Applicant's responses were only partly prepared as of the date of this re-listed hearing and that further legal advice was being sought, that the Applicant's representatives were not in a position to put a proper case to the Tribunal for their client at this re-listed hearing. Nor was there any clarity as to when, or even if, the Applicant might be able to proceed.

4. The Tribunal is satisfied that having regard to these matters the Applicant has failed to proceed with his application within a reasonable time and it is appropriate to dismiss the application under paragraph 100(b) of the ART Act.
5. The Tribunal also believes that had Tribunal staff not made multiple attempts to call MCA after the hearing had been due to commence, it is unlikely that Mr Phelan would have joined the hearing[6] and the Tribunal would have had grounds for dismissing the application under section 99 of the ART Act.[7]
6. The Tribunal does not believe that a further adjournment would assist the Applicant in the present circumstances. Nor would it be a proper use of the Tribunal's resources or provide procedural fairness to the Respondent.
7. The Tribunal is mindful of the Respondent's advice that it had identified a calculation error in the Objection Decision[8] and that had the hearing proceeded, the Respondent would have sought an order for a variation of the Objection Decision to correct this error, which would be to the benefit of the Applicant. Where the Tribunal dismisses the application it cannot also make an order for variation of the Objection Decision. However in circumstances where the Applicant was unable to present a proper case at the hearing, it would not be appropriate for the Tribunal to proceed to determine the matter on the basis of making a decision to vary the Objection Decision to correct that error but which might otherwise affirm the Objection Decision. Where the Tribunal had affirmed the Objection Decision, if the Applicant wished to dispute the substance of the Objection Decision he would most likely need to approach the Federal Court.
8. The Tribunal believes the appropriate course is to dismiss the application for the reasons given. The parties may explore whether there is any administrative basis upon which the calculation error can be rectified outside of a Tribunal review. Otherwise, if the Applicant decides to pursue a review of the Objection Decision when his representation arrangements and advice on prospects have been settled, he may wish to consider whether he should seek reinstatement of his Tribunal application.
9. Section 102 of the ART Act applies if the Tribunal dismisses an application. The Tribunal may reinstate the application, either of its own initiative or upon application by a party to the former proceeding where the application was dismissed in error: subsections 102(2), (5), (6). In some circumstances the Tribunal may also reinstate an application where it considers it appropriate to do so: subsections 102(7), (9). There are statutory time frames for the making of reinstatement applications and a party seeking reinstatement may need to demonstrate special circumstances before the Tribunal will allow reinstatement outside those timeframes: subsections 102(5), (9).
10. In the present matter the Member emphasised to Mr Phelan that reinstatement is not automatic following a dismissal, and that should the Applicant seek reinstatement in the future the Tribunal would need to be satisfied that the conditions of section 102 are met agreeing to do so.

[1] The Tribunal also updated its records with Mr Giorgio as the appropriate contact point for the Applicant, in place of Miss L.

[2] The Tribunal had previously tried to contact the Applicant directly via a telephone number on the Tribunal file, without success.

[3] Mr Phelan confirmed that there was a relationship between Bayside Advisory Services and MCA, but that there were legal matters in progress which had created some challenges.

[4] Mr Phelan also confirmed that the Respondent had not been advised of the changes in advisor or contact details.

[5] Charara v Commissioner of Taxation [2016] FCA 451 at [75], [79] to [80] per Wigney J

[6] This was almost an hour after the hearing had been scheduled to commence.

[7] Under section 99 the Tribunal may dismiss an application if the applicant fails to appear at a case event, in circumstances where the Tribunal is satisfied that the applicant received appropriate notice of the date, time and place of the case event.

[8] See paragraphs 44 and 70 of the Respondent's SFIC.