Consideration
43 In this case, the two day delay in filing the notice of appeal was short. This weighs in favour of an extension of time. The delay was explained by Mr Walt by affidavit evidence. He deposed that on 26 July 2021 a solicitor from Cooper Webb Lawyers (Ms Childs) contacted the prison where Mr Parr was then incarcerated to arrange a telephone conference to take instructions from Mr Parr on 28 July 2021. On 27 July 2021 Ms Childs received an email from the prison confirming the telephone conference. However, that evening Mr Walt received an email from Mr Parr's mother stating that Mr Parr was to be moved to a different prison the following day. The telephone conference then had to be rescheduled, delaying instructions. Although this explanation does not account for the whole period, I am prepared to accept that taking instructions from Mr Parr involved logistical issues that would not be faced but for his imprisonment. Mr Parr was largely dependent on others to ensure steps were taken on his behalf.
44 As to prejudice, I do not consider there is relevant prejudice to the Commissioner arising from the two day delay. I also note that the Commissioner (at least initially) did not oppose the reinstatement application in circumstances where reinstatement would have had the effect that the proceeding would continue.
45 It is the question of merits that requires some attention in this application.
46 This is by no means a clear cut case. However, after close consideration, I have decided to grant Mr Parr's extension application. The main reason for doing so is that in my view there is an argument, that is more than speculative, that ground three has substance: that is, that the Tribunal erred in that it gave significant weight to the absence of verifying evidence, whilst failing to have proper regard to the evidence that was already before the Tribunal, in deciding that the application should be refused. The decision was made in circumstances where on reinstatement it would have been open to Mr Parr to seek to evince further verifying evidence.
47 I have given particular regard to the following:
(a) the Tribunal's assessment of merits in the context of whether the proceeding should be reinstated was that that Mr Parr's prospects were 'unclear' or 'at best, unclear' - it did not go so far as to say that there were no reasonable prospects of success;
(b) there was some evidence before the Court, by way of the numerous s 37 documents before the Tribunal (which included documents sourced from Mr Parr), and at a hearing Mr Parr would have been entitled to make submissions as to their admissibility, reliability, use and the inferences that might be drawn from them;
(c) the SFIC was before the Tribunal and it explained in some detail the arguments and the s 37 documents that Mr Parr sought to rely upon in the context of his claim in the event of reinstatement;
(d) it can be accepted that on its face some of the factual matters in the SFIC (such as that funds were received from acquaintances) would ordinarily require verification at a final hearing;
(e) however, other parts of the SFIC refer to s 37 source documents in a manner that one might reasonably contend was sufficient for the purpose of making an assessment as to the prospect of success of some, even if not all, of the claim, in the general manner appropriate for the purpose of a reinstatement application, even allowing for the need for further verification;
(f) by way of example, in addition to bank statements there was a statutory declaration from Mr Parr's former accountant as to errors the accountant had made in preparing financial returns, and the SFIC refers to other alleged errors simply of calculation;
(g) by way of further example, Mr Parr refers to documents amongst the s 37 documents that verify when he was present in or absent from Australia, and points to alleged errors in those dates in the Commissioner's assessments;
(h) this is not a case where there is a complete absence of any relevant evidence before the Tribunal that might support Mr Parr's case, or that might provide a basis for drawing inferences in his favour or support his case at least in part;
(i) it was apparent at the time of the hearing that Ms Morgan had been involved in the preparation of the SFIC, and the submissions contained in the SFIC may be assumed to have been checked from an accounting perspective and to have introduced a degree of informed third party input;
(j) the point of the reinstatement hearing was whether or not the proceeding should be reinstated so as to permit Mr Parr to proceed to a final hearing;
(k) although the Tribunal considered and dismissed Mr Walt's suggestion that if the application were adjourned he may be able to evince further evidence, that does not wholly answer the point that if the matter were reinstated, Mr Parr would have been in a position to formally seek a short period of time in which to compile and file verification evidence, and it should not be assumed such requests would have been unsuccessful, even having regard to prior delays, bearing in mind (for example) that Ms Morgan's engagement with the issues is revealed by her affidavit and the SFIC;
(l) it is true that there had been delays in the provision of the final SFIC, although the delay between about November 2020 and late February 2021 had been explained, and Mr Parr was dependent upon the availability of Ms Morgan's pro bono services in this regard;
(m) in March 2021 Mr Walt raised with the Tribunal his intention to obtain further information from Ms Morgan and had requested until May for that to occur, but the matter was dismissed in April without his knowledge or that of Mr Parr;
(n) Mr Parr had made a substantive attempt to explain his claim by way of the SFIC, which was provided prior to the reinstatement application; and
(o) once the proceeding was dismissed, there were limits on the evidence Mr Parr could obtain from third parties prior to the reinstatement hearing (for example, by way of the issue of any subpoenas).
48 I add that Mr Parr filed an affidavit in this application and verified the matter with respect to his movements between prisons and his inability to access documents, a matter referred to by Ms Morgan. He also verified that he had no prior knowledge of the April 2021 hearing. He also deposed that he was not informed by his lawyers of any need to prepare further evidence for the purpose of the reinstatement application, other than finalisation of the SFIC, and that he would have been willing to provide an affidavit had he been so informed. Mr Parr deposed that since the reinstatement hearing he has been moved to another prison where he has easier access to documents, and that he has already provided his new solicitors with various documents and his instructions about the various transactions so that they can prepare a witness statement on his behalf. He has also confirmed with Ms Morgan that she is willing to continue to assist him if the matter is reinstated following an appeal. He has not 'rested on his rights' (Franich at [20]).
49 There can be no assurance that on the hearing of any appeal Mr Parr would succeed in maintaining this ground of review. There is clearly work to be done and the proposed ground is not without difficulty. But I consider on an impressionistic level that the ground is arguable and Mr Parr should have the opportunity to provide full argument as to its merits, particularly when one also has regard to the very short delay in filing the application, and the difficulties he has faced in terms of his reliance on lawyers, his reliance on the services provided on a pro bono basis by the Curtin Tax Clinic and having regard to his change in lawyers. It is also relevant that although he has failed to comply with certain directions over time, and the Tribunal accorded him considerable generosity in that regard, Mr Parr has undertaken a number of steps for the purpose of a final hearing. The nature of his proposed arguments has been disclosed. It is not the case that nothing was done prior to the reinstatement hearing.
50 Mr Parr has also purported to provide some comfort in his affidavit that any hearing would proceed expeditiously in the event that this application and appeal is successful. Further, the Commissioner now has access to real property owned by Mr Parr to meet (at least in part) his liabilities as a result of the successful application in Commissioner of Taxation v Parr.
51 Whilst I have taken into account the Commissioner's submissions, and have some sympathy for a degree of frustration on their part, I do not accept that Mr Parr was obliged to evince all evidence on this application that he might seek to rely on for the purpose of any final hearing. Nor, having regard to Mr Parr's circumstances as a whole, do I accept that the 'only conclusion' that might be drawn from the delays and the lack of further filed evidentiary material is that Mr Parr cannot discharge his onus of proof.
52 In light of these reasons, it is not necessary to comment in any detail on the other proposed grounds. I will only make brief comment about ground two. It can be accepted that the Tribunal is required to afford the applicant natural justice, or procedural fairness, when exercising its power of summary dismissal: Lee v Secretary, Department of Social Services [2019] FCA 1855 at [22]-[23]. However, the general position is that Mr Parr is bound by the conduct of his solicitors. That means that at an impressionistic level, success with respect to proposed ground 2 is unlikely.