These proceedings were commenced by Mr Gary Ogden, the applicant, on 24 October 2019 in the Administrative Appeals Tribunal (AAT)[1] in respect of an objection decision made by the Commissioner of Taxation, the respondent, on 16 October 2019. The reviewable objection decision is concerned with notices of assessment of income tax and administrative penalties issued to Mr Ogden for the years ended 30 June 2013 to 2017 inclusive (Relevant Years).
During the Relevant Years, Mr Ogden had been employed as a sales commission agent by IBM Australia up until about March 2015 and from March 2015 up to and including the year ended 30 June 2017, he was employed by Telstra in a similar role. Mr Ogden had claimed he was entitled to various allowable deductions such as laundry expenses, sun protection items, home office occupancy and running expenses, depreciation of work-related items as well as interest expenses on a line of credit that he says he used to pay for work-related expenses, amongst other things, which the Commissioner disallowed. As part of the reviewable objection decision, the Commissioner maintained the imposition of administrative penalties at the base penalty rate of 50% of the tax shortfall for recklessness with an additional uplift of 20% on the basis that Mr Ogden had the same type of penalty imposed previously for the same conduct. The dispute between the parties led to these proceedings.
Since commencement of the proceedings, more than six years ago, there have been lengthy delays in the progress of the matter as well as non-compliance by Mr Ogden of orders made by the Tribunal. This has been the case even though Mr Ogden has had legal and or accounting representatives acting on his behalf.
Granted, Mr Ogden and the Commissioner have engaged in numerous attempts at resolving the proceedings, both in and outside the former AAT over the years, but these have been without success and by all accounts have not meaningfully progressed the applications to a final hearing. In 2025, there was no contact at all between Mr Ogden's representatives and the Commissioner. Subsequently, the Commissioner applied for the applications to be dismissed.

The power of the Administrative Review Tribunal to dismiss a proceeding arises under s 100 of the ART Act, which substantially mirrors the former s 42A(5) of the Administrative Appeals Tribunal Act 1975 (AAT Act).
Section 100 of the ART Act is as follows:

The Tribunal may dismiss an application made to the Tribunal if the applicant fails to do either of the following within a reasonable time: > > (a) proceed with the application; > > (b) comply with this Act or an order of the Tribunal in relation to the proceeding in relation to the application.

The objective of the Tribunal is set out under s 9 of the ART Act:

The Tribunal must pursue the objective of providing an independent mechanism of review that: > > (a) is fair and just; and > > (b) ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and > > (c) is accessible and responsive to the diverse needs of parties to proceedings; and > > (d) improves the transparency and quality of government decision-making; and > > (e) promotes public trust and confidence in the Tribunal.

Section 56 of the ART Act imposes an obligation upon both parties and their representatives to assist the Tribunal to achieve the objective in s 9. While compliant with all Tribunal directions, the Commissioner acknowledged that he could have been more diligent in bringing Mr Ogden's extended non-compliance and failure to progress the applications to the attention of the Tribunal earlier. As set out in the chronology below, relevantly, the Commissioner informed the Tribunal in late November 2025 that the proceedings had languished. Notwithstanding, the Commissioner's acceptance of responsibility in no way excuses Mr Ogden and his representatives from their duty to assist the Tribunal to achieve the objective in s 9.
In Berry v Commissioner of Taxation [2015] FCA 1244, the applicant appealed to the Federal Court the decision of the former Administrative Appeals Tribunal (AAT) to dismiss the applicant's review application to the AAT. The Court observed at [37] as follows, in dismissing the taxpayer's appeal:

The power to dismiss under s 42A(5) is "plainly a valuable discretionary power", as Burchett J observed in Guse v Comcare (1997) 49 ALD 288; [1997] FCA 140, 291 (ALD). Where the provision is engaged, the exercise of that power to dismiss summarily aids the Tribunal in fulfilling the objective in s 2A. The consequence of a failure by an applicant either to proceed with the application or to comply with a direction by the Tribunal in relation to the application within a "reasonable time" is that the applicant is liable to have his or her application dismissed without a hearing on the merits. Such an outcome may seem harsh but because the outcome is specifically provided for by the legislation, that outcome, in itself, is not one that is unreasonable in the legal sense. Thus, I do not accept the submission for Mr Berry that the exercise of power was unreasonable in the legal sense because it closed all avenues of review of the objection decision to Mr Berry.

In Bolton and Australian Securities and Investments Commission [2023] AATA 2022, Deputy President McCabe dismissed an application in the AAT stating at [10]:

The Tribunal is required to proceed in a way that is procedurally fair. But the obligation is not open-ended. As the High Court explained in AON Risk Management Services Ltd v Australian National University [2009] HCA 27, the review must keep in mind other objectives including the need to minimise costs, avoid unnecessary delay, and maintain public confidence in the competence, integrity and efficiency of decision-making processes. The Tribunal is also obliged to pursue the objective in s 2A.

The references to the objective in s 2A in the abovementioned extracts in Berry and Bolton were to former s 2A of the AAT Act which relevantly provided that the AAT must provide a review mechanism that is "fair, just, economical, informal and quick; and is proportionate to the importance and the complexity of the matter". It follows that under s 42A(5) of the AAT Act, and now by analogy under s 100 of the ART Act, if the applicant for review of a decision fails, within a reasonable time, to proceed with the application or to comply with the ART Act or an order of the Tribunal in relation to the proceeding, the Tribunal may dismiss the application without reviewing the decision. The fact that the dismissal of the proceedings would deny the applicant a hearing on the merits is true of every matter in which the power in s 100 of the ART Act is enlivened and exercised.
In Charara v Commissioner of Taxation [2016] FCA 451 relevantly held as follows at [79]-[80] in relation to the exercise of the discretion under s 42A(5) of the AAT Act (which is equally applicable to s 100 of the ART Act):

[79] The discretion must only be exercised sparingly and as a matter of "last resort": Guse v Comcare [1997] FCA 140; (1997) 49 ALD 288 at 291. That is because it involves denying an applicant a hearing of the merits of the application. Because dismissal under s 42A(5) is a matter of last resort, the Tribunal must consider whether dismissal is the proper remedy, or whether it would be more appropriate to take some other course, such as adjourning the proceeding or making some other order to secure compliance: Guse v Comcare at 291. Again, a failure to do so would most likely constitute a misapplication of s 42A(5). > > [80] In exercising the discretion, the Tribunal must also afford the applicant procedural fairness: Guse v Comcare at 291. Procedural fairness would ordinarily require the Tribunal to give the applicant the opportunity to make submissions as to why the discretion should not be exercised. That would include giving the applicant an opportunity to put forward submissions concerning whether there had been a failure to comply with a direction and, if so, whether a reasonable time had elapsed since that failure. It would also ordinarily extend to giving the applicant an opportunity to explain or justify any failure, or to advance any reasons why, despite the failure, the application should not be dismissed. Depending on the particular circumstances, it might also extend to giving the applicant a further opportunity to comply or to remedy the default.

It follows, that the Tribunal's discretion to dismiss an application must be exercised 'sparingly' and as matter of 'last resort'. The Tribunal should also consider whether alternatives to dismissal would be more appropriate when affording the applicant procedural fairness. The alternatives may be an adjournment or providing the applicant with an opportunity to remedy a default.
In Bolton, Deputy President McCabe addressed the issue of what is considered to be a "reasonable time" in the following way at [27]:

The question of what amounts to a reasonable time is, in a sense, impressionistic. There is no point offering synonyms for the words "reasonable time": they are ordinary English words that everyone understands. When determining whether an applicant has had reasonable time, one must have regard to the history of the matter, and the circumstances of the applicant, and determine whether the applicant has had a reasonable time. One undertakes that analysis in the shadow of the objective in s 2A, and having regard to the interests of the decision-maker that expends public resources in the review process. I must ask whether, in all the circumstances, the applicant has failed to do that which is required in the direction within a reasonable time or - where the contention is that they have failed to proceed - whether they have failed to make the progress they should have made within a reasonable time. Once the discretion is enlivened because a reasonable time has been exceeded, one must be conscious of the consequences for the applicant who would lose its right to review the reviewable decision in the Tribunal. The discretion will also be informed by the objective in s 2A. The power is not to be exercised punitively; one must consider what remains to be done to bring the matter on for a hearing. Sometimes, the best course is to just move on and list the matter for a hearing.

The following chronology is based on the Tribunal's case management records as well as information provided by Mr Ogden and the Commissioner in their respective written submissions filed in relation to the dismissal hearing. Their submissions helpfully also canvassed where the parties had engaged in alternative dispute resolution events and provided each other with documents, not all of which were filed with the Tribunal.
It is noted at the outset that Mr Ogden has had previous tax proceedings in the AAT concerning earlier income years including Re Ogden and Commissioner of Taxation [2014] AATA 385 and Re Ogden and Commissioner of Taxation [2016] AATA 32 in which he had previously claimed similar deductions. Importantly, Mr Ogden has had experiences as a result of which he would be aware what is expected of him in progressing his proceedings.

On 24 October 2019, these proceedings were commenced in the AAT. At the commencement of the proceedings, Mr Ogden was represented by a solicitor, Mr Morris Maroon who at that time was working with Argyle Lawyers.
On 12 December 2019, the Commissioner lodged and served the Tribunal Documents.

On 18 February 2020, the Tribunal issued directions requiring Mr Ogden to file and serve his Statement of Facts Issues and Contentions (SFIC) and evidence by 17 March 2020. Mr Ogden did not file his SFIC and evidence by 17 March 2020 nor was any explanation provided or any variation to the timetable sought.
On 2 March 2020, the Tribunal listed the proceedings for a conference on 28 April 2020. On 5 March 2020, the parties met privately, and Mr Ogden attended that meeting with Mr Maroon and Mr David McNeice. Mr McNeice had been Mr Ogden's tax agent and his representative in the earlier tax proceedings but at the time of the present applications, the Tax Practitioners Board had cancelled Mr McNeice's registration as a tax agent as well as the registration of a related partnership of which he was a partner and the supervising tax agent.
On 23 April 2020, Mr McNeice provided to the Commissioner some materials and calculations relating to the matters discussed at the meeting on 5 March 2020, including regarding the laundry and the interest expenses.
On 28 April 2020, following a conference that day, the Tribunal listed the proceedings for a further conference on 16 June 2020. That conference was subsequently postponed to 21 September 2020. It was further postponed to 15 October 2020 because Mr Maroon was unavailable due to other commitments.
On 15 October 2020, following a conference that day, the Tribunal issued the following directions:
1. On or before 11 December 2020, the Applicant must give to the Tribunal and the other party a Statement of Issues, Facts and Contentions and any additional evidence on which the Applicant intends to rely.
2. On or before 1 February 2021, the Respondent must give to the Tribunal and the Applicant a Statement of Issues, Facts and Contentions in reply and any additional evidence on which the Respondent intends to rely.
On 16 October 2020, the Tribunal listed a conciliation on 25 February 2021.
Mr Ogden did not file his SFIC and any evidence by 11 December 2020 as required by the directions dated 15 October 2020. The Tribunal's and the Commissioner's only recorded SFIC filed for Mr Ogden is dated 30 May 2022. The Tribunal's records also show Mr Ogden as having filed four affidavits, amongst other materials. The first affidavit sworn 24 March 2021 was filed on 29 March 2021, two further affidavits sworn 8 May 2021 were filed on 18 May 2021 and, in addition, a fourth affidavit sworn 30 May 2022 was filed on or about 31 May 2022. I set out brief details of the matters covered by the affidavits further below.

On 1 February 2021, in accordance with the Tribunal's directions dated 15 October 2020, the Commissioner lodged and served his SFIC, notwithstanding the fact that Mr Ogden had not filed his SFIC and evidence by 11 December 2020 and no variation of the timetable had been sought.
On 25 February 2021, the parties attended a conciliation at the Tribunal which was followed by a listing of a resumed conciliation on 15 April 2021. Later that same day, Mr Maroon, by way of emails, provided spreadsheets of the calculations of certain expenses noting these were not contained in the Tribunal Documents.
On 8 March 2021, the Tribunal wrote to Mr Ogden and Mr Maroon that it had received hard copies of documents in 5 folders on 5 March 2021 and queried their purpose. Mr McNeice responded on 9 March 2021 explaining that "[w]e took copies of supporting documentation previously sent to the Taxation Office in December 2018 and January 2019, and not included in the T Documents, to the Conciliation meeting on Thursday 25th February 2021. At the conciliation meeting it was suggested that the Tax Office required another copy... and that we should make another copy for the AAT."
On 29 March 2021, Mr Ogden filed and served his first affidavit sworn on 24 March 2021. As stated above, per the AAT's directions dated 15 October 2020, Mr Ogden was directed to file and serve his evidence by 11 December 2020. The first affidavit of Mr Ogden is short comprising 6 pages together with annexures of 3 pages in which Mr Ogden broadly deposed as to his employment and medical history as the basis for his deductions for sun protection items such as sunscreen, hat and sunglasses. The annexures were letters from doctors including dermatologists about his skin cancers. He also set out in his affidavit certain paragraphs from an income tax ruling providing for deductions for protective items and he related his experiences from the earlier tax proceedings.
On 7 April 2021, Mr Maroon wrote to the Tribunal requesting an additional 3 weeks to provide the "information requested" due to Mr McNeice's health issues. Later that same day, the Tribunal queried Mr Maroon as to the nature of the "information requested". On 8 April 2021, Mr Maroon wrote in response to the Tribunal query stating that the "information request" refers to the "information requested by the Australian Taxation Office in support of the Taxpayer's submissions."
On 14 April 2021, the Tribunal vacated the conference listed on 15 April 2021 and relisted it for 3 June 2021.
On 18 May 2021, Mr Ogden filed and served two further affidavits both sworn by him on 8 May 2021. One of these is 7 pages in length plus annexures of 7 pages and is virtually identical to his affidavit sworn 24 March 2021 in that it provides the same employment and medical history as a basis for deductions for sun protection items as well as his experiences in his earlier tax proceedings. In addition to the same annexures attached to his first affidavit, Mr Ogden attached to this second affidavit two emails dated 24 and 25 October 2019 from Telstra managers to staff. The first email related to staff attending a "mini Olympics" offsite event which advised them to wear sunscreen and a hat, while the second email dated 25 October 2019 was about a team event and stated "[i]t's going to be a hot one, so don't forget your sunnies! Sunscreen will be provided."
Mr Ogden's other affidavit sworn on 8 May 2021 was 24 pages in length and besides again providing a history of Mr Ogden's employment, as well as his previous claims in the earlier tax proceedings, Mr Ogden set out in this affidavit numerous paragraphs extracted from taxation rulings regarding deductions for home office expenses. The relevant paragraphs from taxation rulings were under the following headings: occupancy expenses, running expenses, deductions for the decline in value of depreciating assets, repairs to home office, place of business. Mr Ogden then related, in broad terms, how he had calculated his various hone office running costs for each of the Relevant Years, indicating percentages used and the basis for those. In relation to the single largest deduction claimed in each of the Relevant Years referred to as "Interest on work related and other expenses", Mr Ogden stated in his affidavit that "worksheets showing the calculation of interest on work related and other expenses have been provided to the Tax Office... The Tax office have asked for the interest paid to be re-calculated. Copies of all loan statements have been provided to the Tax Office including all prior year loan statements".
On 28 May 2021, the Commissioner wrote to Mr Maroon requesting to be provided with the material referable to the "portfolio loan" offered at the conciliation on 25 February 2021. The Commissioner also wrote "[t]o date, no evidence has been provided among the five lever arch files which were provided to the Commissioner after the mediation conference about the details of the purpose via this loan."
On 3 June 2021, following a Tribunal conference, the Tribunal issued directions requiring the Commissioner to give to the Tribunal and Mr Ogden a request for information concerning the calculations, and the methodology applied to the calculations of interest expenses by 18 June 2021. Separately, the Tribunal listed a conference on 22 June 2021.
On 18 June 2021, the Commissioner set out a list of questions and requested Mr Ogden for evidence, which included, amongst other things, the purchase of income-producing items and relevant credit card statements and an explanation of how Mr Ogden arrived at the figures used in his calculation for the claim of interest expenses in respect of the line of credit. In the same letter, the Commissioner clarified that the request for information "is not intended to convey to Mr Ogden a change in the Commissioner's position regarding deductibility at large. Rather, the Commissioner is seeking to understand the quantum of the claims made."
On 22 June 2021, at the Tribunal conference, the parties agreed to initially narrow the scope of the Commissioner's request made on 18 June 2021 to a one-year period to the 2013 income year (referred to as the Sample Year). The information was directed to be provided to the Commissioner in 3 weeks, and thereafter, within 1 week from receipt of the same, the Commissioner was to revert to Mr Ogden with whether that information, and any further information for the remaining financial years in dispute would, sufficiently address the Commissioner's request of 18 June 2021.
Also on 22 June 2021, the Tribunal issued the following directions:
1. On or before 23 August 2021, the Applicant must give to the Tribunal and the Respondent the further information requested by the Respondent.
2. On or before 17 September 2021, the Respondent must give to the Tribunal and the Applicant a written response to the further information provided by the Applicant.
Separately, the Tribunal listed the proceedings for a conference on 28 September 2021.
On 14 July 2021, the Commissioner informed Mr Maroon that the materials for the Sample Year had not been received and requested a timeframe as to when they could be expected. On 15 July 2021, Mr Maroon advised that due to the serious illness of Mr McNeice, Mr Ogden required an extension of a further 3 weeks. On 16 July 2021, the Commissioner informed Mr Maroon that a further 3 weeks would place Mr Ogden in breach of the Tribunal directions and proposed a variation.
On 23 July 2021, Mr Maroon requested the Tribunal, with the consent of the Commissioner, to vary the directions such that the time was extended to 10 September 2021 for Mr Ogden to give to the Commissioner the further information requested by the Commissioner, and the time was varied to 8 October 2021 for the Commissioner to give to Mr Ogden a response to that further information. In making this request, Mr Maroon informed the Tribunal that the following timetable had also been agreed between the parties:

Applicant to provide sample 2013 year within 3 weeks from today - 6 August 2021. > > Respondent to provide feedback within 1 week - 13 August 2021 > > Applicant to provide response in full within 4 weeks - 10 September 2021. > > Respondent to provide response within 4 weeks - 8 October 2021

Later, on 23 July 2021, the Tribunal varied the directions made on 22 June 2021 as follows:
1. On or before 10 September 2021, Mr Ogden must give to the Tribunal and the Respondent the further information requested by the Respondent.
2. On or before 8 October 2021, the Respondent must give to the Tribunal and Mr Ogden a written response to the further information provided by the Applicant.
On 27 August 2021, Mr McNeice provided the Commissioner with materials for the Sample Year, which comprised spreadsheets of calculations. On 30 August 2021, Mr McNeice provided the Commissioner "tax invoices and receipts which I could not locate in the T Documents."
On 3 September 2021, the Commissioner wrote to Mr Maroon in response to the materials received for the Sample Year, providing specific comments on the material supplied. The Commissioner advised Mr Maroon that the materials were not sufficient to address the Commissioner's request of 18 June 2021 and that it would be a waste of Mr Ogden's efforts and the Commissioner's resources to replicate the process for the remaining years. In the same letter, the Commissioner proposed that the proceedings be listed for a hearing.
On 17 September 2021, the Commissioner wrote to Mr Maroon proposing to vacate the directions of the Tribunal issued on 23 July 2021 as well as the conference listed on 19 October 2021 in light of the Commissioner's position conveyed on 3 September 2021 and proposed that the parties jointly request the Tribunal for a conference in order that the proceedings progress to a final hearing. On 20 September 2021, Mr Maroon responded that he was liaising with Mr Ogden. On 29 September 2021, the Commissioner followed up Mr Maroon to see if he had obtained instructions.
On 1 October 2021, Mr Maroon informed the Commissioner that he was recovering from a surgical procedure and would respond to the Commissioner's proposal of 17 September 2021 in a week's time. On 8 October 2021, the Commissioner followed up Mr Maroon. On 11 October 2021, Mr Maroon provided the Commissioner with revised calculations for Mr Ogden's taxable income for the income years 2005 to 2017. On or about the same day, Mr Maroon on behalf of Mr Ogden, provided a settlement offer to the Commissioner.
On 19 October 2021, a conference was held, at which the following Tribunal directions were made:
1. On or before 25 October 2021, the Respondent must give to the Tribunal and Mr Ogden a written response to the information provided by the Applicant.
2. On or before 15 November 2021, Mr Ogden must give to the Tribunal and the Respondent any further information requested by the Respondent
3. On or before 30 November 2021, the Respondent must give to the Tribunal and Mr Ogden a written response to the further information provided by the Applicant.
The matter was also set down for a Tribunal conference on 7 December 2021 which was relisted for 21 December 2021.
On 24 October 2021, Mr McNeice provided the Commissioner and the Tribunal with a copy of a revised schedule of calculations and a copy of the portfolio loan statements, which he said he could not locate in the Tribunal Documents. These statements were for the financial years ending 2006 to 2011.
On 25 October 2021, the Commissioner again wrote to Mr Maroon informing him that the materials received on 11 October 2021 were not sufficient to address the Commissioner's request of 18 June 2021. The Commissioner also explained, among other things, that the material received from Mr Ogden did not show substantiation or the basis for the calculation and that there appeared to be instances of claims for deductions which had been reimbursed by Mr Ogden's employer. In the letter, the Commissioner informed Mr Ogden of the Commissioner's opinion that the matter should appropriately be progressed to a hearing. The Commissioner also provided Mr Ogden with an offer of settlement but not resolution was concluded. It was now two years since Mr Ogden had commenced the proceedings on 24 October 2019.
On 21 December 2021, the Tribunal issued the following directions:
1. On or before 16 May 2022, the Applicant must give to the Tribunal and the Respondent:
  1. All evidence on which the Applicant intends to rely at the hearing;
  2. A Statement of Issues, Facts and Contentions
2. On or before 20 May 2022, the Applicant AND the Respondent must give to the Tribunal and the other party a Hearing Certificate for the period August to September 2022
3. On or before 27 June 2022, the Respondent must give to the Tribunal and the Applicant:
  1. All evidence on which the Respondent intends to rely at the hearing;
  2. A Statement of Issues, Facts and Contentions

On 26 May 2022, Mr Maroon requested the Tribunal, with the consent of the Commissioner, to extend order 1 made on 21 December 2021 by 2 weeks, as well as varying the balance of the directions by the same length of time. On or about 31 May 2022, Mr Ogden lodged and served his SFIC, and an affidavit dated 30 May 2022 witnessed by Mr Maroon. Mr Ogden deposed to having made two previous affidavits in these proceedings, one sworn on 24 March 2021 and one on 8 May 2021 although, as stated above, there were in fact three earlier filed affidavits. The fourth affidavit was 14 pages in length and relevantly covered the same background and information as in his earlier affidavits, with some further details in relation to the types of his claims and items that were said to no longer be in dispute.
On 3 June 2022, the Commissioner lodged and served his first hearing certificate in compliance with the directions made on 21 December 2021.
On 3 June 2022, the Tribunal varied the directions made on 21 December 2021 as set below:
1. On or before 6 June 2022, the Applicant must give to the Tribunal and the Respondent:
  1. All evidence on which the Applicant intends to rely at the hearing;
  2. A Statement of Issues, Facts and Contentions
2. On or before 10 June 2022, the Applicant AND the Respondent must give to the Tribunal and the other party a Hearing Certificate for the period September to October 2022.
3. On or before 18 July 2022, the Respondent must give to the Tribunal and the Applicant:
  1. All evidence on which the Respondent intends to rely at the hearing;
  2. A Statement of Issues, Facts and Contentions.
4. On or before 12 August 2022, the Applicant must give to the Tribunal and the Respondent an amended Statement of Issues, Facts and Contentions; or the Applicant must advise the Tribunal and the Respondent in writing that the Applicant will not be providing an amended Statement of Issues, Facts and Contentions.
On 30 June 2022, the Tribunal listed the proceedings for final hearing on 19 September 2022.
On 19 July 2022, the Commissioner requested the Tribunal, with the consent of Mr Ogden, to vary orders 2 to 4 of the Tribunal directions made on 3 June 2022 such that:
1. On or before 22 July 2022, Mr Ogden AND the Respondent must give to the Tribunal and the other party a Hearing Certificate for the period September to October 2022
2. On or before 15 August 2022, the Respondent must give to the Tribunal and the Applicant:
  1. All evidence on which the Respondent intends to rely at the hearing;
  2. A Statement of Issues, Facts and Contentions.
3. On or before 9 September 2022, Mr Ogden must give to the Tribunal and the Respondent an amended Statement of Issues, Facts and Contentions; or Mr Ogden must advise the Tribunal and the Respondent in writing that Mr Ogden will not be providing an amended Statement of Issues, Facts and Contentions.
In compliance with the amended directions above, on 12 August 2022, the Commissioner lodged and served his amended SFIC dated 12 August 2022 which expressly responded to Mr Ogden's SFIC filed on 30 May 2022. He also lodged a set of Supplementary Tribunal Documents and his second hearing certificate.
On 25 August 2022, the parties held a private meeting, and on 16 September 2022, the Commissioner provided Mr Ogden with a written offer of settlement.
On 19 September 2022, Mr Maroon emailed the Tribunal in response to an email received from the Tribunal about the possibility of vacating the hearing. Mr Maroon, who at this stage was working with Coleman Greig Lawyers, stated "we are still of the opinion that vacating is necessary as the matter has been settled". The Tribunal accordingly vacated the hearing.
On 29 September 2022, Mr McNeice contacted the Tribunal acknowledging the Commissioner's offer to settle dated 16 September 2022 stating "Gary is away until next week and is unable to respond to the Commissioner until he returns next week".
On 13 October 2022, Mr Ogden rejected the Commissioner's offer of settlement. As a consequence of receiving advice from Mr Ogden that the offer of settlement had been rejected, the Commissioner, also on 13 October 2022, wrote to the Tribunal to advise that the parties had made various attempts within and outside the Tribunal to resolve the issues in dispute but were unable to reach a final resolution and asked for the matter be listed for hearing. The Commissioner also provided his third hearing certificate estimating the hearing to take three days.
On 19 October 2022, Mr Maroon wrote to the Tribunal stating that Mr Ogden rejected the Commissioner's offer and relevantly stated, as follows:

We are in the process of appointing a new barrister to represent Mr Ogden. > > ... > > Mr Ogden is engaging a forensic accountant to check and verify the detailed calculations provided by Mr McNeice. > > ... > > We are seeking clarification from the occupational health and safety officer in Telstra to clarify and confirm Telstra's policy on sunscreen, sunglasses and hats, and the application of Telstra's policy to Mr Ogden's situation. > > There has been some confusion as to the area of Mr Ogden's office and the access by Mr Ogden to the office in his home. We are asking a builder to check and verify the measurements using laser technology. > > ... > > We are asking an engineer employed by the electricity provider to confirm the costs of Mr Ogden working from his home office. ... > > Mr Ogden is preparing an amended Affidavit to include deductions omitted from the earlier affidavit, under instruction from Mr Ogden's barrister.

On 24 October 2022, three years after he commenced the proceedings, Mr Ogden lodged and served his hearing certificate estimating the hearing to take one day.

On 19 July 2023, some nine months later, Mr Ogden provided to the Commissioner but did not file with the Tribunal, correspondence between Mr McNeice and Mr Adam Russionello, being the barrister that had been engaged, and between Mr McNeice and Mr Brett Goodyer of SV Partners Forensics being the forensic accountant that had been engaged. A report prepared by Mr Goodyer dated 16 January 2023 was also provided to the Commissioner together with a signed affidavit of Mr Ogden incompletely dated March 2023 and witnessed by Mr McNeice. Similarly, these documents were provided to the Commissioner but were not filed with the Tribunal.

On 16 May 2024, the Commissioner provided Mr Maroon with a written offer of settlement, open for acceptance until 23 May 2024.
On 27 May 2024, the Commissioner received a letter from Mr Ogden personally dated 20 May 2024 in which Mr Ogden sought clarification of the lapsed offer of settlement and noting the effluxion of time since he had provided the additional information and affidavit to the Commissioner.
On 9 December 2024, the parties again held a private meeting but there was no resolution. It was now more than 5 years since the commencement of the proceedings.

Between about 9 December 2024 and 23 January 2026, there was no contact between the Commissioner and Mr Ogden. Nor did Mr Ogden contact the Tribunal at any time throughout 2025 or do anything to progress the proceedings in the Tribunal.
On 28 November 2025, per a file note record on the Tribunal's case management system, an officer of the Australian Taxation Office (ATO) contacted the Tribunal's Registry enquiring about the progress of the proceedings, which coincided with a review of 'aged cases' by the Tribunal.

On 14 January 2026, the Tribunal listed the proceedings for a case management directions hearing on 28 January 2026. On or about the same day, Mr Maroon advised the Tribunal that he was not representing Mr Ogden anymore. Mr Ogden stated in his written submissions filed on 23 February 2026 that Mr Maroon had resigned as his solicitor on 16 May 2024.
On 23 January 2026, Mr McNeice wrote an email to the Commissioner which was forwarded to the Tribunal in which he stated, amongst other things:

Gary did not accept the offer made by the Commissioner of Taxation. > > The records were reviewed by my barrister... > > It was recommended that we engage a Forensic Accountant. > > The Commissioner asked Mr Ogden and I to prepare a spreadsheet showing line by line, item by item, calculation of the interest paid and claimable... > > Shortly after our meeting with the Commissioner, I went into hospital ...I picked up a severe infection... It took ten months before the infection was cured. > > Since then, I have been back in hospital for another three operations. I am still going to ... Hospital one day a week for rehabilitation. > > I started working through the line of credit last year between operations. > > I am confident the issues will be resolved with the Commissioner of Taxation.

On 28 January 2026, the directions hearing was held and Mr McNeice appeared with Mr Ogden. Mr McNeice noted that Mr Ogden is still conducting line-by-line calculations of the interest expenses incurred, the progress of which had been delayed due to Mr McNeice's medical issues, and that a further 4 to 6 weeks was required to complete the calculations.
The Tribunal made the following directions after hearing from the parties as to the history of the proceedings, including an application by the Commissioner to dismiss the proceedings:
1. On or before 11 February 2026, the Respondent to lodge with the Tribunal and give to Mr Ogden any evidence and an outline of submissions in support of the dismissal application.
2. On or before 4 March 2026, Mr Ogden to lodge with the Tribunal and give to the Respondent any evidence and an outline of submissions opposing the dismissal application.
3. The matter is listed for a dismissal hearing by video on 13 March 2026 at 10:00am AEDT.
On 13 March 2026, the hearing was held to consider the dismissal application at which Mr McNeice appeared together with Mr Ogden.

The Commissioner submitted that Mr Ogden had failed to both proceed with the applications in a reasonable time and to comply with the ART Act and the orders of the Tribunal in relation to the applications (paragraphs (a) and (b) of s 100 of the ART Act). Accordingly, the Commissioner urged the Tribunal to dismiss Mr Ogden's applications on both grounds.
In his written submissions, Mr McNeice stated that the reason for the delays was his numerous surgeries in 2025 and the fact he was still recovering. He also stated that although he was scheduled to undergo several operations in 2026, he was planning to put them off "in the hope of settling Mr Ogden's matter". Mr McNeice claimed that Mr Ogden was not solely at fault for the delays in the proceedings and that the Commissioner had also contributed to substantial delays in 2024 by not responding to Mr Ogden. Mr McNeice also submitted that Mr Ogden was not aware of any direction from the Tribunal after the meeting on 22 August 2022, or that any order of the Tribunal had not been complied with. He also stated that as Mr Ogden was communicating directly with the Tax Office, Mr Ogden was not aware of his responsibility "to keep the Tribunal informed of his progress with the Commissioner". He contended that Mr Ogden "should be granted additional time to provide the additional information required by the Commissioner". Further, he submitted that if the applications for the 2013 to 2017 taxation years are dismissed without an agreement with the Commissioner, Mr Ogden could be back before the Tribunal for the 2018 to 2025 taxation years.
I have decided that the proceedings should be dismissed pursuant to both paragraphs (a) and (b) of s 100 of the ART Act. Specifically, in relation to Mr Ogden failing within a reasonable time to proceed with the applications, I considered the lengthy age of the proceedings, and the circumstances of Mr Ogden as an applicant with prior similar experiences in tax proceedings in the Tribunal, to be influential matters. Mr Ogden also had legal and or accounting representatives acting for him throughout the proceedings. I accept that his accounting adviser, Mr McNeice, had been ill for some time, and that explained some of the delays, but the proceedings were languishing for a considerable period before 2025 when Mr McNeice had his operations. On balance, I considered there were inadequate explanations for the excessive gaps and delays in the proceedings. The fact is that Mr Ogden had not done anything for a lengthy period to meaningfully progress the applications to a final hearing but was instead maintaining a position of wanting to resolve the dispute informally with the Commissioner.
Additionally, I have also had regard to the fact that Mr McNeice was unable to indicate with any clarity what was still required to be prepared for the proceedings to be hearing ready. Instead, he maintained that it was necessary to prepare calculations for further negotiations with the Commissioner. Moreover, the calculations still to be undertaken were mostly in relation to the largest disputed deductions claimed in the Relevant Years.
It will also be recalled that a final hearing had at one stage been listed for 19 September 2022 but it was vacated based on a written representation dated 19 September 2022 made by Mr Ogden's legal representative to the Tribunal, that the tax dispute had been settled. When asked about this email at the hearing, Mr McNeice stated that he was unaware of it and that it must have been sent in error as no settlement had been reached.
The Commissioner submitted and I accept that the last filing in the proceedings by Mr Ogden was a hearing certificate dated 24 October 2022 which was outdated and lodged and served late. Nothing had meaningfully happened, therefore, for three and a half years in terms of progressing the proceedings, and in 2025, there had been no contact by Mr Ogden with the Tribunal nor had he contacted the Commissioner.
In relation to satisfying the conditions in paragraph (b) of s 100 of the ART Act, as to non-compliance with the ART Act and the Tribunal's directions, the Tribunal noted that Mr Ogden had failed to adhere to numerous directions of the Tribunal including those made on 18 February 2020, 15 October 2020, 21 December 2021, 3 June 2022 (and amended on 19 July 2022) that, by 9 September 2022, he was to file and serve an amended SFIC. This is notwithstanding, as stated above, Mr Ogden had legal and or accounting representatives acting for him.
Prior to the hiatus in the proceedings between late October 2022 and January 2026, Mr Ogden's conduct of the proceedings was also slow and unsatisfactory. For example, Mr Ogden's SFIC had only been lodged and served on 30 May 2022, after numerous instances of non-compliance with directions of the Tribunal. That is, a document that is typically filed and served within two months of an application with respect to deductions claimed by an individual taxpayer was, in this case, filed more than 2 years and 2 months after the due date set by the Tribunal's first direction. His evidence, comprising his four affidavits together with annexures were filed at different times and not all in accordance with Tribunal directions. This was in circumstances where Mr Ogden's claims were similar to claims for deductions he had made in previous financial years that were the subject of the earlier tax proceedings. That is, Mr Ogden would have been familiar with the issues and requirements imposed on a party to proceedings, as well as the onus of proof he had to discharge, as the taxpayer, in tax proceedings.
I agree with the Commissioner's submission that the history of the proceedings reveals that Mr Ogden has had a reasonable opportunity to put his case forward before the Tribunal, and that his approach to the proceedings has been dilatory and unsatisfactory. Since late October 2022, there has been no attempt by Mr Ogden to proactively engage with the Tribunal to progress the proceedings, including no attempt to amend the directions to bring Mr Ogden into compliance with an adjusted timetable for the filing of any amended SFIC and further evidence.
At the last directions hearing on 28 January 2026 and at the hearing on 13 March 2026, it was apparent that Mr Ogden remains far from ready to have the proceedings listed for a final hearing. Mr McNeice indicated that he is still in the process of performing calculations for each item being claimed and he queried whether documents provided to the Commissioner on or about 30 May 2022 had been filed with the Tribunal. As stated in the chronology, his legal representative had indicated on 19 October 2022 that more evidence was being obtained, including clarification from Telstra's occupational health and safety officer, a builder and, separately, an engineer employed by the electricity provider. It has been almost three and a half years since the Commissioner lodged and served his amended SFIC, and more than six years since the commencement of the proceedings but no such further evidence has been filed in the Tribunal.
It is acknowledged that the parties have attempted to resolve the proceedings with various alternative dispute resolution events and settlement offers but without success. These include in-person meetings held on 5 March 2020, 25 August 2022 and 25 November 2024, a Tribunal conciliation on 25 February 2021 and numerous Tribunal facilitated conferences including on 22 June 2021 and 19 October 2021, in addition to written correspondence between the parties. Mr McNeice repeatedly stated he was confident that resolution would be reached between the parties including in his email dated 23 January 2026 and at the hearing on 13 March 2026. However, exploring settlement is an entirely separate matter from the duty of both parties imposed under s 56(2) of the ART Act, which requires them to use their best endeavours to assist the Tribunal to achieve its objective described in s 9 of the ART Act. It is trite but necessary to also observe that "settlement negotiations do not have the effect of suspending the obligations of the parties to continue to take all necessary procedural steps to advance the litigation.": Van Blitterswyk v Sons of Gwalia Ltd (Administrator Appointed) & Ors [2006] WASC 283 at [51].
The Commissioner pointed out that when it became obvious that the parties' respective positions were too far apart to resolve the proceedings through informal means, the Commissioner unequivocally made it known to Mr Ogden that the proceedings should be determined by way of hearing. That was communicated to Mr Ogden on several occasions, namely, on 3 September 2021, 17 September 2021 and 25 October 2021. Mr Ogden cannot have been under any misapprehension about his obligations to progress the proceedings to a hearing where the various settlement offers were not accepted and having the benefit of his advisors acting for him throughout the proceedings.
I reject the argument that Mr Ogden wasn't aware that he needed to inform the Tribunal of his position or to progress the proceedings in circumstances where he was communicating with the Tax Office. Mr Ogden has had earlier tax proceedings in the Tribunal. There can be no doubt that Mr Ogden and his advisors would fully understand and be familiar with the requirement to progress the proceedings expeditiously and assist the Tribunal to achieve the objective in s 9 of the ART Act. Instead, Mr Ogden demonstrated a cavalier attitude by failing to take his obligations as a party to Tribunal proceedings seriously and by failing to act responsibly in adhering to the relevant statutory provisions and the Tribunal's orders.
I considered as an alternative to the dismissal of the proceedings allowing a further period, as requested by Mr Ogden. However, having regard to all the circumstances, especially the lengthy history of the proceedings and Mr Ogden's pattern of non-compliance, I did not consider a further delay to allow Mr Ogden to prepare calculations - even if they were to be adduced as evidence in the proceedings and the matter listed for hearing - to be a viable alternative. This option is contrary to the objective set out in paragraph (b) of s 9 of the ART Act which is to "pursue the objective of providing an independent mechanism of review that ... ensures that applications are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits". Besides, to the extent Mr Ogden claimed that the forensic accountant had confirmed his calculations for the Sample Year, I was not satisfied that Mr McNeice would be able to complete the calculations for the balance of the Relevant Years expeditiously.
I also accept that the staleness of the proceedings causes prejudice to the Commissioner as the substantive issues currently in dispute before the Tribunal relate to the assessments of Mr Ogden's income tax and associated penalties for the financial years ended 30 June 2013 to 2017, almost 13 years ago, as to the earliest period. This extreme passage of time has already brought significant prejudice to the Commissioner as several of the Commissioner's officers have left the ATO, and any evidence on which Mr Ogden seeks to substantiate his claims may now be difficult to challenge where documents have not been retained. This is the case even though Mr Ogden as the taxpayer bears the burden of proof under the taxation administration laws.
To be granted further time when considered against the history and significant amount of time and opportunity already afforded to Mr Ogden would be contrary to the objective of the Tribunal in s 9 of the ART Act. I have also taken into consideration the fact that Mr Ogden has been represented throughout these proceedings, including by Mr McNeice who represented him in the earlier tax proceedings, and the further fact most of the deductions claimed by Mr Ogden in the Relevant Years were disallowed due to a lack of substantiation and a lack of nexus. The effluxion of time also does not assist Mr Ogden. Additionally, Mr Ogden's proposal that if the applications are dismissed, he may commence further applications in relation to later financial years for similar claims for deductions is a matter for him.
Finally, the delays indirectly and inevitably adversely impact the many other litigants who are seeking to progress their matters to a Tribunal hearing. The Tribunal's objective requires it to consider the competing needs of all parties when determining how to best allocate its resources. The Tribunal must be mindful that its time is a publicly funded resource, and it must take into account inefficiencies in the use of that resource. There is also a need to promote public trust and confidence in the Tribunal in accordance with paragraph (e) of s 9. See also Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [5] and [30] per French CJ. In all the circumstances, it is not fair to the Commissioner, or other users of the Tribunal, to continue to indulge the behaviour of Mr Ogden with more time and more cost in the face of the Tribunal's finite resources.

I am satisfied that the criteria to dismiss the applications were enlivened and, furthermore, that it is appropriate in the present circumstances to dismiss the applications. This is because a further adjournment would unlikely assist Mr Ogden to prepare for the hearing, especially having regard to his expressed desire to have time to prepare calculations for the purpose of continuing to negotiate with the Commissioner. Nor would it be a proper use of the Tribunal's resources or provide procedural fairness to the Commissioner to further delay the proceedings. Other litigants and the Tribunal have also been adversely impacted by the numerous case events as well as hearing dates that have been lost and costs incurred.
Section 102 of the ART Act applies if the Tribunal dismisses an application such that the Tribunal may reinstate the application either on its own initiative or upon application by a party to the former proceedings where the application was dismissed in error or where it considers it appropriate to do so. There is a statutory timeframe for a reinstatement application to be made within 28 days after receiving notice of dismissal or such longer period as the Tribunal may allow in special circumstances.

For the reasons set out above, the proceedings are dismissed under paragraphs (a) and (b) of s 100 of the ART Act.

I certify that the preceding 95 [ninety-five] paragraphs are a true copy of the reasons for the decision herein of Deputy President G Lazanas.

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

[1] On 14 October 2024 the AAT was abolished and the Administrative Review Tribunal was established. Any proceeding in the AAT which was not determined by 14 October 2024 continued in the ART and is to be determined by the application of the provisions of the Administrative Review Tribunal Act 2024 (Cth). Anything done in relation to the proceedings before 14 October 2024 is taken to have been done by the Tribunal under the transitional provisions in the Administrative Review Tribunal (Consequential & Transitional Provisions No 1) Act 2024 (Cth).

Appeals Tribunal Act 1975

Administrative Review Tribunal Act 1975(Cth)

Review Tribunal (Consequential & Transitional Provisions No [1) Act 2024(Cth)

Review Tribunal Act 2024

Ogden and Commissioner of Taxation (Practice and procedure) [2026] ARTA 479 (24 March 2026)

Berry v Commissioner of Taxation [2015] FCA 1244

Bolton and Australian Securities and Investments Commission [2023] AATA 2022

Charara v Commissioner of Taxation [2016] FCA 451

Re Ogden and Commissioner of Taxation [2014] AATA 385

Re Ogden and Commissioner of Taxation [2016] AATA 32

Van Blitterswyk v Sons of Gwalia Ltd (Administrator Appointed) & Ors [2006] WASC 283

Ogden and Commissioner of Taxation (Practice and procedure) [2026] ARTA 479 (24 March 2026)

At a glance

Court

Decision date

Source

Judgment (34 paragraphs)

Legislation Cited (4)

Cases Cited (8)

Ogden and Commissioner of Taxation (Practice and procedure) [2026] ARTA 479 (24 March 2026)