My position has been made clear by my former solicitors - the overwhelming sense that I have is that I'll not be given a fair hearing in this Tribunal. It is clear to me that there's no independence arbiter in this jurisdiction.

My position is that the Tribunal should make their ruling on the papers - as I have put in a lot of time/expense and inconvenienced a number of people to produce and place this evidence before the Tribunal. That includes the attached affidavit from my father.

If you don't accept what has been produced then there seems to me nothing that will satisfy either the Commissioner or this Tribunal. All that I ever wanted was a fair and impartial hearing of my case.

1. The Tribunal treated the Applicant's email as an application pursuant to s 106 of the

Administrative Review Tribunal Act 2024 (Cth) (the Tribunal Act) for her application to be

1 Wright v Administrative Review Tribunal [2025] FCA 1258 per Longbottom J.

determined without a hearing. A full copy of s 106 Tribunal Act is at Annexure A to these reasons.

1. On 30 October 2025, the Tribunal conducted a directions hearing via video. The Applicant was given notice of the directions hearing but failed to attend. The Tribunal made 3 unsuccessful attempts to contact her by phone and then proceeded with the hearing in her absence. The Tribunal made directions requiring the Respondent to notify the Applicant of his attitude to the s 106 application and listed the application for further directions on 12 November 2025.

1. On 3 November 2025, the Respondent wrote to the Applicant to advise that he did not consent to her application for the purposes of s 106(2) Tribunal Act.

1. On 5 November 2025, the Applicant responded to the Respondent by email and advised:

I received your letter advising that you don't accept the proposal for the application to be determined without my appearance - on the papers.

As you know - I've no legal representation anymore. To continue with the proceeding in circumstances where the ATO has a full complement of lawyers as well as the resources of the commonwealth - would (I feel) be a futile exercise.

I managed to file evidence by all of the witnesses (save for my mother) - and the ATO has filed no evidence itself;

That evidence is extensive - it's contained in the affidavits and reports listed in your Submissions at paragraph [20]

Aspersions have been cast on the integrity honesty and credibility of myself (by both the ATO and the Tribunal) as well as each of the witnesses who were being called - again by both the Tribunal and the ATO;

If the legal representatives of the ATO don't understand the resulting trust that arises upon the circumstances outlined in my husband's affidavit - then I'm not sure how you can expect me to understand it?

Many of the aspersions cast upon myself concern the evidence I gave initially - and that which I gave once I was informed of the correct legal analysis and its ramifications.

In your submission of 24 September 2025 it states that "The Applicant does not explain why a trustee is not the legal person who 'derives' income from such a transaction. In this regard, no legal authority

has been cited by the Applicant to support the proposition that a trustee is not the legal person who derives income from a transaction."

I am told that this very submission - to tax a trustee as the legal person who derives income (rather than the beneficiary presently entitled to the income) - has been made by the Commissioner several times and rejected by the Courts every time. See for example Macfarlane v Commissioner of Taxation; Zobory v Commissioner of Taxation. You might, I am told, also refer to section 96 ITAA36.

It is grossly improper for the Commissioner to make a submission like this to the Tribunal when he knows very well it is contrary to law. It is also a breach of the Commissioner's statutory obligation to assist the Tribunal.

I am concerned that the Commissioner will fail to assist the Tribunal as he is required to do. I (regrettably) don't feel that I'll receive a review of my case in the statutorily guaranteed way.

I don't intend to waste any more time in pursuing it....there will only be one outcome unless the tribunal is properly assisted by the Commissioner. There can be no prejudice to the commissioner in the matter being dealt with as I have suggested - or the matter being adjourned until after the determination of the substantive proceedings in the Federal Court.

1. On 12 November 2025, the Tribunal held a further directions hearing. Once again, the Applicant was given notice but failed to attend. The Tribunal made two unsuccessful attempts to contact the Applicant by phone and then proceeded with the directions hearing. The Respondent was afforded an opportunity to make further oral submissions on the s 106 application before it was determined. The application was then refused and those attending were advised reasons for the decision would issue to the parties.

1. Subsections 106(2)-(5) Tribunal Act gives the Tribunal discretion in particular circumstances to proceed to reach a decision on an application without conducting a hearing. In the present case, the only part of s 106 which appears to apply is s 106(4) Tribunal Act. I note in particular, that s 106(2) is not applicable because the Respondent has opposed the application.2

2 Correspondence from the Respondent to the Applicant dated 3 November 2025 [1.4].

1. Under s 106(4) Tribunal Act, the Tribunal must be satisfied both that the Applicant has failed to comply with the Act or an order of the Tribunal within a reasonable time and that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding. The Respondent conceded and I accept that the Applicant's failure to attend the directions hearings listed on 30 October 2025 and 12 November 2025 could constitute a failure to comply with an order/s of the Tribunal for the purposes of s 106(4)(a).

1. This leads me to consider whether I should exercise my discretion. I am not permitted to do so unless it appears that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding (s 106(4)(b)).

1. In 2010120 (Refugee) [2025] ARTA 550, the Tribunal considered the meaning of each of the phrases - 'it appears to the Tribunal', 'the issues for determination in the proceeding' and 'can be adequately determined in the absence of the parties'.3

1. As the Tribunal observed in 2010120 (Refugee) the Tribunal's objectives in s 9 Tribunal Act are relevant to my consideration of these matters.4 Relevantly, s 9 requires the Tribunal to provide an independent mechanism for review which is fair and just (s 9(a)) while ensuring applications are resolved as quickly and with as little formality and expense as a proper consideration of the matters before the Tribunal permits (s 9(b)). The objectives in s 9 are intended to operate flexibly to shape the Tribunal's obligation in s 55 Tribunal Act to ensure that each party is given a reasonable opportunity to present their case and to make submissions and adduce evidence.

1. The Tribunal observed in 2010120 (Refugee) that the words 'it appears to the Tribunal' recognise that the Tribunal's evaluation of what is required for a particular proceeding may necessarily fall short of a definite conclusion given it will normally be making a decision about whether the hearing is required before an application has commenced or finished. That means its assessment will likely be made on a case by case basis from evidence and material lodged in the proceeding but not tested.5 The Tribunal also cautioned in 2010120

(Refugee) that 'if the Tribunal were to have any real concern about whether the issues in the proceeding could be adequately determined without a hearing, it should not proceed [under s 106 of the Act].'6

1. In this case, the issues to be determined by the Tribunal are dictated by s 14ZZK(b) of the

Taxation Administration Act 1953 (Cth) (TAA) which provides that:

1. if the taxation decision concerned is an assessment--that the assessment is excessive or otherwise incorrect and what the assessment should have been; or

1. in any other case--that the taxation decision concerned should not have been made or should have been made differently.

1. Section 14ZZK(b) TAA makes it clear that it is the Applicant who bears the onus of satisfying the Tribunal of the issues to be determined. There is no requirement on the Respondent in this proceeding to lead evidence to defend his assessments.7

1. The next question is whether these issues can be adequately determined in the absence of the parties. Given the Applicant bears the onus of proof, her evidence is crucial to the Tribunal's determination of the issues. In this case, the Applicant had originally proposed to lead evidence from 7 lay witnesses (including herself) and 2 expert witnesses. Prior to the adjournment of the hearing in early October 2025, only the Applicant had given evidence and been cross examined. For reasons which are not relevant to the s 106 application, she was also offered an opportunity to give her evidence afresh if and when the hearing resumed.

1. Two of the lay witnesses were summonsed to give evidence at the original hearing.8 Those summonses were initially adjourned and finally discharged on 30 October 2025. The Applicant had also previously given notice to the Tribunal that a further lay witness would need to be summonsed to give his evidence. However, the hearing was adjourned before the Applicant could request that a summons issue to that witness.

1. It is not clear to the Tribunal whether the Applicant continues to rely on all these witnesses.

1. The Respondent had put the Applicant on notice of a number of critical factors ahead of the commencement of the hearing:9

(a) he submitted that this was a case where all material facts were not known;

(b) he contended that the Applicant's case had 'evolved' throughout the proceeding and made clear that he wanted to test whether the evidence before the Tribunal was consistent; and

(c) he put the Applicant and the Tribunal on notice that:

(i) he disputed the Applicant's characterisation of certain arrangements and transactions;

(ii) the credibility of each of the Applicant's witnesses was squarely in issue; and

(iii) he required all the Applicant's witnesses to attend for cross examination.

1. The test in s 106(4)(b) Tribunal Act, requires the Tribunal consider the interests and needs of both parties as well as the requirements of procedural fairness when evaluating how to proceed. That concept of procedural fairness also underpins the Tribunal's objectives in s 9 Tribunal Act which are relevant to that evaluation. In circumstances such as this case, where the evidence is contested, where notice has been given by the Respondent that each witness's credibility is in issue and each witness is required for cross examination, procedural fairness demands that a hearing take place so that evidence can be tested. That process also assists the Tribunal to evaluate the evidence before making findings on the matters to be determined.

1. I appreciate that the Applicant would prefer an easy and less costly process for determination of her application because she is no longer represented. However, for the reasons I have given, I am not satisfied that this is a case where the issues can be adequately determined without a hearing. This case presents the very sort of exception which was alluded to by the Tribunal in 2010120 (Refugee).

9 Respondent's Amended Statement of Facts, Issues and Contentions dated 8 September 2025 [5]-[8].

1. The application for the proceeding to be determined without a hearing is refused.

106 Circumstances in which Tribunal may reach decision without hearing - review of decisions only

Tribunal may make decision without hearing in certain circumstances

(1) The Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of subsections (2) to (5) applies.

(a) all of the parties to the proceeding consent to the proceeding being determined without the hearing of the proceeding; and

(b) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.

Where only parties are applicant and non-participating party to the proceeding or hearing

(a) the only parties to the proceeding are the applicant and a non-participating party to the proceeding or the hearing of the proceeding; and

(b) either:

(i) the decision is wholly in favour of the applicant; or

(ii) the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and

(a) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.

(a) a party to the proceeding fails to comply with this Act or an order of the Tribunal in relation to the proceeding within a reasonable time; and

(b) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.

(a) a party to the proceeding fails to appear at a Tribunal case event that relates to the proceeding; and

(b) the party is not a non-participating party to the proceeding or Tribunal case event; and

(c) the Tribunal is satisfied that the party received appropriate notice of the date, time and place of the Tribunal case event; and

(d) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.

1. Note 1: Tribunal case events include hearings, directions hearings and dispute resolution processes (see the definition of Tribunal case event in section 4).

1. Note 2: For how to appear at a Tribunal case event, see section 73.