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PRACTICE AND PROCEDURE - stay - operation of a decision to cancel registration as tax agent - public interest - reputational damage - prospects of success - stay granted

Administrative Appeals Tribunal Act 1975 (Cth) s 41(2)

Re AXO3D and Tax Agents' Board of New South Wales (2003) 53 ATR 1083 Cases

Re Commonwealth of Australia & Quirke [1986] AATA 57; (1986) 9 ALD 92

Shi v Migration Institute of Australia Ltd [2003] FCA 1304; (2003) 134 FCR 326

1. In these proceedings the Applicant, ATP Group Pty Ltd (ATP Group), seeks a stay under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) of a decision made by the respondent, the Tax Practitioners Board (TPB), to cancel the registration of ATP Group as a tax agent.
2. A decision to cancel the registration of a tax agent will ordinarily be stayed by the Administrative Appeals Tribunal (AAT) unless the public interest requires otherwise. As Tamberlin J observed in Shi v Migration Institute of Australia Ltd [2003] FCA 1304; (2003) 134 FCR 326 at 333, the refusal of a stay may prove devastating for an applicant:

[28} It is evident that if a decision favourable to an applicant is made by the AAT ... then the agent in this case will have been wrongfully deprived of the opportunity to earn his livelihood from that time up to the time of the favourable determination. There may also be damage to his practice and reputation. There is no provision for recovery of this loss or for any disruption to the practice, or loss of reputation or goodwill. A favourable decision to the applicant by the AAT would also mean that the applicant had been wrongfully refused registration and these are important considerations...

[29]If the applicant in the present case is not granted a stay, the effectiveness of the hearing and determination of the application for review will be diminished.

1. The considerations relevant to the grant of a stay were conveniently summarised by Senior Member Sassella in Re AXO3D and Tax Agents' Board of New South Wales (2003) 53 ATR 1083 and need not be repeated.

1. After due consideration, the Tribunal has decided to grant a stay in relation to the decision of the TPB for the following reasons:
   • (a) If the ATP Group were to succeed in its primary application to have the cancellation reversed, it would suffer serious damage both reputational and otherwise if the matter were not stayed;
   • (b) ATP Group has about 925 clients that rely on it for the conduct of their tax affairs. If the primary application were to fail, they would need to find a new agent but at this stage the time, cost and inconvenience that this would entail is not warranted;
   • (c) About half of the clients of the ATP Group are Arabic speakers and feel comfortable communicating with tax agents who speak their language. In these circumstances forcing so many clients (almost 500) to find a new agent with the requisite Arabic skills is again not warranted at this stage;
   • (d) There seems to be no identifiable material prejudice to the TPB if a stay is granted;
   • (e) The director of the ATP Group relies predominately on income earned for the activities of ATP Group to provide for his family;
   • (f) In addition to the director, there are five employees of ATP Group who face losing their jobs if a stay is not granted. If a stay were not granted and the primary application is ultimately successful, it would be a particularly unfair outcome for these five employees; and
   • (g) The ATP readily agreed to the condition that it not provide taxation services to any new clients while the decision of TPB is under review. If ATP Group was found to have breached this condition and the matter was referred back to the AAT, the stay would be immediately revoked.

1. It is not appropriate on an application for a stay to conduct a preliminary trial of issues that will fall for ultimate decision by the AAT: Senior Member Williams in Re Commonwealth of Australia & Quirke [1986] AATA 57; (1986) 9 ALD 92 at 95_._ However, it is noted that ATP Group maintains that its application for review has good prospects of success.
2. Without elaborating on the grounds, there does seem to be some genuine disagreement between the ATP Group and the TPB as to the strength of the case against the ATP Group and without more I am not able to assess properly those prospects of success. Consequently I am not in a position to take this factor into account one way or the other.

1. I have put in place steps through directions that should ensure that this matter is heard as expeditiously as possible so as to limit the duration of the stay order.

1. The implementation of the Respondent's decision of 23 December 2014 to cancel the registration of ATP Group Pty Ltd as a tax agent is stayed until the decision of the Tribunal on the application for review comes into operation or until further order of the Tribunal.
2. It is an agreed condition of this order that the Applicant cannot provide taxation services to any new clients while the decision of the Respondent is under review.

I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Professor R Deutsch, Deputy President

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