The Applicant acknowledges that the dismissal of his original application resulted from his withdrawal of that application, however he said that this withdrawal was based on a misunderstanding of the respective jurisdictions of the Tribunal and the Federal Court. His application encompassed a number of issues in addition to those covered by the Objection Decision, including FOI and CDDA matters. In early communications with the Tribunal there may have been confusion around what issues the Tribunal was able to address in relation to his application.
The Applicant described facing circumstances of bereavement, financial hardship and homelessness at the time he was trying to manage his taxation dispute. He did not have professional representation and undertook his own research in relation to the legal questions.
The Tribunal was not provided with a transcript of the directions hearing in the Federal Court, and although the recollections of the parties differ as to exactly what was said by judge at that hearing, there is agreement that a question has been raised as to the Federal Court's jurisdiction.
The Respondent's position was that by the withdrawal and consequential dismissal of the original application, the Applicant's review rights under Part IVC of the Taxation Administration Act 1953 (Cth) (TAA 1953) were exhausted. Paragraph 14ZZ(1)(a) of the TAA 1953 provides that where a person is dissatisfied with a reviewable objection decision made by the Respondent, the person may apply to the Tribunal for a review of the decision 'or' appeal to the Federal Court against that decision. The Respondent referred to the decision in Punin v Deputy Commissioner of Taxation and Another in support of the proposition that once a person has decided to pursue a review in the Tribunal 'it was no longer open to raise the merits of the Commissioner's assessments before the court by way of appeal from the objection decisions.'

The factors which the Tribunal should consider include the merits of the underlying application for review,[6] although the purpose of an interlocutory hearing is not to conduct a hearing of the substantive matters. An assessment of the merits or prospects of success of an Applicant's case in the context of an application for reinstatement may of necessity be superficial.[7]
The Applicant was able to articulate to the Tribunal a number of grounds upon which he believed the Objection Decision was incorrect including a failure by the Respondent to have regard to certain information he had provided, a misunderstanding in relation to formatting of a document, a failure by the Respondent to validate information with his bank and the role of his previous tax agent in submitting incorrect material. The Applicant also stated that he had obtained further documents under FOI processes which he believed would assist his case.
The Objection Decision indicated that the Applicant's objection against the Respondent's audit findings had been allowed in part. The underlying assessments arise from numerous separate items of income and deduction, and the Applicant had previously filed material with the Tribunal seeking to explain his position on these items. The imposition of administrative penalties relates to the accuracy or otherwise of the Applicant's position. The Tribunal might be persuaded that there was merit in the Applicant's position in relation to one or more of these items. Although it is not possible to determine whether the Applicant's case is particularly meritorious, it would be difficult to conclude that the Applicant's case is 'hopeless'.[8] This also tends in favour of granting the application.

The Tribunal invited the Respondent to identify any matters which might relate to fairness being accorded to them should the application be reinstated. The Respondent's representative said that they could not identify any particular elements of unfairness, but believed it was important to recognise that if the application proceeded it should be on the basis of a merits review of the Objection Decision. The Applicant confirmed that he understands that the current application could not provide an avenue for review or decisions in relation to the CDDA and FOI issues that he has previously identified.
As mentioned above, the amount of time that has elapsed between withdrawal of the application and the Respondent's approach to the Tribunal for reinstatement is not substantial. This would potentially lessen any disadvantage to the Respondent.
The Applicant outlined his concern that should his application not be reinstated he will potentially be left without any forum to challenge the Objection Decision. He does not believe that it would be in the interests of justice for this to occur as a result of his prior misunderstanding of the scope of the jurisdiction of the Tribunal and the Federal Court.
Section 9 of the ART Act sets out the objective of the Tribunal in providing an independent mechanism of review the Tribunal that (amongst other things):
- Is fair and just.
- Improves the transparency and quality of government decision-making.

Reinstating the application for review of the Objection Decision in circumstances where the Applicant strongly disputes that decision and the Respondent has agreed to facilitate his right of review is consistent with this objective.

Section 9 also requires the Tribunal to have regard to the need to ensure that applications are resolved as quickly and with as little expense as a proper consideration of the matters permits.
If the application were to be reinstated, the Applicant would be expected to progress the proceeding in accordance with the requirements of the ART Act, including complying with directions of the Tribunal relating to the filing of relevant documents and evidence and attending scheduled case events. At the interlocutory hearing the Applicant confirmed to the Tribunal that he understood these obligations and was committed to progressing his application.

For the reasons set out above the Tribunal considers that it is appropriate to reinstate the application.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the interlocutory decision herein of General Member C. Willis

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

[1] See the Applicant's email to the Tribunal dated 15 January 2025 and the Withdrawal of application for review form lodged online on the same date.

[2] This is consistent with the letter sent to the Respondent by the Tribunal on 11 February 2025 which noted that the Respondent could apply for reinstatement if it believed the proceeding had been dismissed in error or there were other reasons for reinstatement.

[3] Serpinli v Secretary, Department of Social Services ('Serpinli') [2019] FCA 2029 per O'Callaghan J at [26].

[4] Somba and Minister for Home Affairs (Migration) [2020] AATA 425 ('Somba') at [27] to [29], in particular discussing the factors described in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 176 ('Hunter Valley') relating to extensions of time for review.

[5] Punin v Deputy Commissioner of Taxation and Another [2000] FCA 568; (2000) 44 ATR 233 at [65] per Emmett J. Where the Tribunal has made a decision in relation to a reviewable decision, a party to the proceeding may 'appeal' to the Federal Court on a question of law from the Tribunal decision under section 172 of the ART Act, but in the present circumstances no decision has been made by the Tribunal.

[7] Re Clinnick and Australian Securities and Investments Commission [2021] AATA 7 per Deputy President McCabe at [26].

Review Tribunal Act 2024

Administration Act 1953

Haines and Commissioner of Taxation (Practice and procedure) [2025] ARTA 461 (24 April 2025)

Re Clinnick and Australian Securities and Investments Commission [2021] AATA 71

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 176

Serpinli v Secretary, Department of Social Services [2019] FCA 2029

Somba and Minister for Home Affairs (Migration) [2020] AATA 425

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (5)

Haines and Commissioner of Taxation (Practice and procedure) [2025] ARTA 461 (24 April 2025)