FEDERAL COURT OF AUSTRALIA

Juneja v Tax Practitioners Board [2017] FCA 908

ORDERS

THE COURT ORDERS THAT:

1.    The applicants’ application to adduce further evidence be refused.

2.    The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    This is an appeal by the applicants against a decision made by the Administrative Appeals Tribunal (Tribunal). The appeal is brought under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) and that subsection limits the appeal to an appeal on a question of law. The applicants are Mr Hemanshu Juneja and Three Wickets Pty Ltd (Three Wickets). The respondent to the appeal is the Tax Practitioners Board (Board).

2    On 5 January 2015, Mr Juneja brought an application for review by the Tribunal of a decision made by the Board on 12 November 2014. Mr Juneja was advised of the decision by letter from the Board dated 5 December 2014. Mr Juneja was associated with a company called Cudmores Integrated Business Solutions Pty Ltd (Cudmores). On 19 June 2014, the Board refused an application by Cudmores for the renewal of its registration as a tax agent under the Tax Agent Services Act 2009 (Cth) (Act). The Board refused the application under s 20-25 of the Act, having found that Mr Juneja, a director of Cudmores, had ceased to be a fit and proper person. Section 20-5(3) of the Act provides that a company is eligible for registration as a registered tax agent if the Board is satisfied that each director of the company is a fit and proper person. Having made the decision it did on 19 June 2014, the Board decided at its meeting on 12 November 2014 that it should terminate Mr Juneja’s registration as a tax agent under the power contained in s 40-5(1)(b) of the Act. That paragraph empowers the Board to terminate the registration of a registered tax agent who ceases to meet one of the tax practitioner registration requirements.

3    On 15 July 2015, the Board considered the continued registration of Three Wickets as a tax agent. Mr Juneja is associated with that company. The Board decided that the registration of Three Wickets should be terminated using the power in s 40-15(1)(b) of the Act on the basis that Three Wickets had ceased to meet the tax practitioner registration requirement that each director of the company is a fit and proper person. Mr Juneja was the sole director of the company. The Board advised Three Wickets of that decision by letter dated 24 July 2015 and on 14 August 2015, Three Wickets brought an application for review by the Tribunal of that decision.

4    The Tribunal heard the applications for review in June and July 2016, and on 7 October 2016, made its decision affirming the decisions under review (Juneja and Another v Tax Practitioners Board [2016] AATA 786).

The Facts

5    The Tribunal had before it a number of documents, including a Statement of Issues, Facts and Contentions of the Respondent dated 10 March 2016 (Respondent’s Statement of Issues) and Mr Juneja’s Statement in Response dated 30 March 2016. It is plain from those documents (among others) that a number of facts were not in dispute before the Tribunal.

6    The following is a statement of the facts taken from the Tribunal’s reasons under the heading, “Material Background”.

7    On 1 October 2010, Mr Juneja became a director of Cudmores. At all relevant times, Cudmores was trading as the trustee of the Cudmores Integrated Business Solutions Trust (Trust).

8    On 12 January 2011, Mr Juneja became the sole director and shareholder of Cudmores. On 7 March 2011, Cudmores was granted registration as a tax agent.

9    Cudmores (as trustee of the Trust) had failed to lodge income tax returns by their due dates. The Tribunal recorded the details as follows:

10    Cudmores (as trustee of the Trust) had also failed to lodge 10 business activity statements by their due dates. The Tribunal recorded the details as follows:

11    Cudmores had outstanding tax liabilities and the Tribunal noted that those liabilities increased over an extended period without any payment arrangement being in place. The liabilities included GST and PAYG withholding liabilities. The Tribunal recorded the details as follows:

(a)    on 1 October 2010, when the Applicant was appointed as a director of Cudmores, the outstanding tax liabilities of Cudmores (as trustee of the Trust) totalled $105,971.63;

(b)    on 12 January 2011, when the Applicant became the sole director of Cudmores, the outstanding tax liabilities of Cudmores (as trustee of the Trust) totalled $125,128.62;

(c)    on 14 October 2013, when the Board sent a letter to the Applicant requesting an explanation about the outstanding tax liabilities of Cudmores, the relevant liabilities totalled $477,060.36; and

(d)    on 24 February 2014, when the Applicant lodged an application for renewal of Cudmores’ registration as a tax agent, the outstanding tax liabilities of Cudmores (as trustee of the Trust) totalled $518,186.81.

12    The Board’s case before the Tribunal was that Mr Juneja contacted the Australian Taxation Office (ATO) by telephone on 13 June 2013 and discussed with an ATO representative, the Trust, the trust deed for the Trust, and a debt owed by the trustee of the Trust. The Tribunal found that Mr Juneja made the telephone call on 13 June 2013 and discussed with the ATO representative the Trust, the trust deed for the Trust, and a debt owed by the trustee of the Trust. At that time, Mr Juneja was the sole director and shareholder of Cudmores. It will be necessary to return to these findings.

13    On 14 October 2013, the Board sought an explanation from Mr Juneja as to why Cudmores as trustee of the Trust had outstanding lodgements and tax liabilities then totalling $370,967.50. Mr Juneja responded through his lawyers by letter dated 30 October 2013. It is not necessary for me to set out the terms of the letter.

14    On 26 November 2013, an investigator who had been appointed by the Board advised Mr Juneja that, if Cudmores (as trustee of the Trust) did not pay its outstanding liabilities by “the end of March” or enter a repayment arrangement with the ATO, then Cudmores would be investigated with a view to it being referred to the Board’s conduct committee.

15    On 24 February 2014, Mr Juneja lodged an application on behalf of Cudmores for renewal of its registration as a tax agent. Mr Juneja listed himself as the only registered tax agent and director at Cudmores and he answered “no” to the following questions:

*Are there any other matters that may affect the company’s eligibility for registration?

…

*Are there any matters or events that may affect any director’s good fame, integrity and character? This may include:

•    …

•    if they have outstanding personal tax obligations with the Australian Taxation Office, for example, debt or lodgment/s [sic] …

16    Mr Juneja also declared, on behalf of Cudmores, the following:

•    I have answered all the relevant questions to the best of my knowledge, information and belief and they are true and correct in every particular:

…

•    I am aware that if I make a statement that is false or misleading in a material particular, then I may be guilty of an offence pursuant to section 8K of the Taxation Administration Act 1953 (Cth):

…

•    I have made all necessary enquiries to establish the good fame, integrity and character of each company director to provide a response on behalf of our company directors.

17    On 19 August 2014, Mr Juneja lodged an application with the Tribunal for a review of the decision of the Board made on 19 June 2014 to reject the application by Cudmores for the renewal of its registration.

18    On 2 February 2015, Mr Juneja lodged with the Australian Securities and Investments Commission (ASIC) an application to deregister Cudmores. In the application to deregister the company, Mr Juneja relevantly declared that:

…

(e)    the company has no outstanding liabilities; and

(f)    the company is not a party to any legal proceedings.

19    The Tribunal found that at the time the application to deregister the company was lodged with ASIC, Mr Juneja knew or ought to have known that:

(a)    Cudmores (as trustee for the Trust) had a very large amount of outstanding taxation liabilities (ie $574,035.26);

(b)    Cudmores was a party to the application for review of the decision to reject its renewal of registration as a tax agent.

20    The Tribunal found that Mr Juneja did not inform ASIC in the application to deregister the company or otherwise, that Cudmores had significant outstanding liabilities or that it was a party to the application for review of the decision to reject its renewal of registration as a tax agent.

21    On 6 April 2015, Cudmores was deregistered by ASIC and ceased to exist under s 601AD(1) of the Corporations Act 2001 (Cth). At that time, Cudmores’ taxation liabilities totalled $583,775. There were no repayment arrangements in place in relation to those liabilities.

22    On 12 January 2015, Mr Juneja arranged for a payment of $50,000 towards Cudmores’ outstanding taxation liabilities.

23    The Tribunal found that as at 6 April 2015, Cudmores (as trustee of the Trust) had also failed to lodge further income tax returns and business activity statements by their respective due dates. The Tribunal recorded the details as follows:

24    The Tribunal found that Mr Juneja did not inform the Tribunal or the Board that Cudmores was deregistered on 6 April 2015 at his request and purported to take a number of steps on behalf of Cudmores in relation to its application for review between the time Cudmores ceased to exist on 6 April 2015 and the time he purported to make and file on 16 November 2015 a statement on behalf of Cudmores.

25    The Tribunal referred to various sections in the Act. It also referred to what it considered to be relevant policies, being an explanatory paper published by the Board and entitled “TPB(EP) 02/2010: Fit and Proper Person”, and an explanatory paper published by the Board entitled: “TPB(EP) 01/2010: Code of Professional Conduct”. The Tribunal described the issues before it in the following terms:

(a)    Whether the Applicant is a ‘fit and proper person’ within the meaning of paragraphs 20-5(1)(a) and 20-50(3)(a) of the Act?

(b)    Whether the Applicant’s tax agent registration should be terminated pursuant to paragraph 40-5(1)(b) of the Act?

(c)    Whether the Company Applicant has ceased to meet the tax practitioner registration requirement in paragraph 20-5(3)(a) of the Act that each director of the company is a fit and proper person?

(d)    Whether the Company Applicant’s tax agent registration should be terminated pursuant to paragraph 40-15(1)(b) of the Act?

26    The Tribunal noted that in determining whether Mr Juneja was a fit and proper person, it may take into account facts and circumstances occurring after the Board made its decision and it referred to Shi v Migration Agents Registration Authority (2008) 235 CLR 286.

27    The Tribunal considered a number of Tribunal decisions in which the Tribunal had considered the criterion of a fit and proper person and said that the effect of the cases was that in determining whether Mr Juneja was a fit and proper person, the Tribunal needed to consider whether he met the requirements of competence, character and contrition at the time the Tribunal made its decision. By reference to Tribunal authority (Burnett v Tax Practitioners Board [2014] AATA 687), it defined each of those matters as follows:

(a)    Competence – whether [the agent] has a proper knowledge of taxation laws, is able to competently prepare income tax returns and deal with queries from the ATO, and is a person of such competence and integrity that others may entrust their taxation affairs to [their] care;

(b)    Character – whether [the agent] is a person of such reputation and integrity that the ATO may be confident that the returns lodged by [them] are completed honestly and competently; and

(c)    Contrition – whether [the agent] appreciates the significance of [their] wrongdoing, has expressed remorse, and has rehabilitated [themselves], such that there is unlikely to be a lapse in the standards required of [them] in the future.

28    The Tribunal then considered each of those matters and formed a view adverse to Mr Juneja with respect to each of them. That led the Tribunal to affirm the decisions of the Board.

29    I will need to consider the Tribunal’s reasons closely as I examine each of the Questions of Law and corresponding Grounds of Appeal. In those circumstances, I do not propose to summarise the reasons generally at this point.

Question of Law 1/Ground of Appeal 1a

30    This Question of Law and Ground of Appeal are in the following terms:

Question

1.    Whether the Tribunal erred in failing to make a required finding of fact in [45] in relation to the First Applicant’s competence.

Ground

1.    The Tribunal erred in concluding at [46] that the First Applicant does not satisfy the ‘competence’ element of the ‘fit and property [sic] person’ requirement in s 20-5(1)(a) of the Tax Agent Services Act 2009 (Cth) by reason that:

a.    the Tribunal concluded at [45] that a factor weighing against the Applicant in considering the competence element was that:

i.    the Applicant either was unwilling to accept that Cudmores was the trustee of the Trust due to his concerns about the consequences of such an admission for his case; or

ii.    the Applicant was genuinely unable to tell whether Cudmores is or was the trustee of the Trust;

however the first alternative went only to support the character element and the second alternative was only capable of weighing against the First Applicant in connection with the competence element. The Tribunal was required to, but did not, make any finding as to the second alternative for the purposes of the competence element;

31    The Question of Law and Ground of Appeal relates to the Tribunal’s treatment of Mr Juneja’s competence. The Tribunal noted Cudmores’ non-compliance with taxation laws and failure to pay taxation liabilities and Mr Juneja’s responsibility to ensure that that was done having regard to the fact that at the relevant time he was the sole director of Cudmores.

32    The applicants submitted that the Tribunal erred in law in failing to make a finding which was relevant to either Mr Juneja’s competence or to his character. The finding related to the reason Mr Juneja refused to accept that Cudmores was the trustee of the Trust. One explanation was that Mr Juneja knew that Cudmores was the trustee of the Trust, but refused to admit that fact because of the consequences such an admission would have for his case. If that was the explanation, then that was relevant to his character. Another explanation was that Mr Juneja was genuinely unable to determine whether Cudmores was the trustee of the Trust. If that was the explanation, then that was relevant to his competence.

33    The applicants submitted that although the Tribunal said that Mr Juneja’s refusal to accept that Cudmores was the trustee of the Trust was a significant consideration, it did not make the necessary finding as to the explanation or reason for that refusal. The applicants submitted that the failure to make a finding about that matter was an error of law.

34    The applicants referred to a decision of the New South Wales Court of Appeal, Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 (Resource Pacific v Wilkinson), in which an allegation was made that the District Court of New South Wales had failed to make a necessary finding. The principal reasons were delivered by Basten JA (with whom Beazley JA agreed). His Honour said (at [42]):

42    A ground of failing to give “any or any proper reasons” is frequently used without sufficient attention to the precise nature of the complaint. As has been noted on numerous occasions, it is important to distinguish between the situation where a judge has made and recorded a finding, without explaining the basis for the finding, and one in which the true complaint is that no finding has been made: see Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [129]–[130] (Hayne J). If a particular finding is a necessary step in support of the court’s orders, the failure to make the finding may constitute an actual failure to exercise the jurisdiction conferred on the court, despite the appearance of exercise. However, the complaint is then not properly one of a failure to give reasons, but of a failure to address and determine a necessary issue.

35    The applicants submitted that the error of which they complain appears in the following passages in the Tribunal’s reasons (at [45]-[46]):

45    Another significant consideration when determining whether the Applicant is sufficiently competent to hold registration as a tax agent is his continued refusal to accept that Cudmores was the trustee of the Trust for the entire period that he was its sole director and shareholder. His continued refusal suggests that he knew that Cudmores was the trustee of the Trust, but was unwilling to admit that fact due to his concerns about the consequences of such an admission for his case. Alternatively, his inaction is unclear, especially when he had worked in accounting for many years and had acted for around 200 companies and trust entities. But even with this business experience he was still unable to tell whether Cudmores really was the trustee of the Trust. During his oral evidence, he was taken to records showing that the company appointed as trustee of the Trust in the trust deed had the same ACN as Cudmores. Even his own lawyers accepted that Cudmores was the trustee of the Trust and made this clear in their correspondence. If, despite having seen this evidence the applicant is still genuinely unable to tell whether Cudmores is or was the trustee of the Trust, then he must lack competence as both an accountant and a tax agent.

46    Although the Applicant continued to deny that Cudmores was ever the trustee of the Trust, he ultimately accepted during cross-examination that the liabilities were not owed by the Trust, but were owed by the trustee of the Trust. However, he continued to maintain that Cudmores was not liable for the tax liabilities because Cudmores was never the trustee of the Trust. This ongoing attitude of the Applicant casts serious doubts on his eligibility to hold registration as a tax agent. A person must be of good character and have sufficient competence to be registered as a tax agent. The Board submitted, and I would agree, that he does not satisfy the competence component of the fit and proper person requirement in the Act. Counsel for the Applicant submitted that it could not be argued that the Applicant had been so careless as to demonstrate no genuine attempt to carry out obligations imposed on him. On this, I would respectfully disagree.

36    I do not think that the Tribunal failed to make a necessary finding.

37    In this case, the relevant passages in the Tribunal’s reasons appear under the heading of “Competence” and it is clear that the Tribunal’s conclusions related to that topic and not the topic of “Character”. That was the matter upon which the Tribunal drew the adverse conclusion in paragraph 46 that Mr Juneja did not satisfy the competence component of the fit and proper person requirement of the Act. It was open to the Tribunal to conclude, as I think it did, that Mr Juneja’s refusal, despite having seen the evidence to which the Tribunal referred, to accept that Cudmores was the trustee of the Trust, reflected adversely on Mr Juneja’s competence as an accountant and tax agent.

38    It is true that the Tribunal referred to the other possibility which was that Mr Juneja knew that Cudmores was the trustee of the Trust, but refused to accept that because of the consequences he perceived that such acceptance might have for his case. However, the Tribunal was not bound to accept or reject that possibility in express terms. The Tribunal’s approach might be seen as giving Mr Juneja the benefit of the doubt in terms of the two possibilities.

39    Question of Law 1 and Ground of Appeal 1a must be rejected.

Question of Law 2/Ground of Appeal 1b

40    This Question of Law and Ground of Appeal are in the following terms:

Question

2.    Whether the Tribunal erred in only having regard to the First Applicant’s competence from 2011 to 2013, and failed to have regard to evidence in relation to the First Applicant’s competence as at the date of the hearing.

Ground

1.    The Tribunal erred in concluding at [46] that the First Applicant does not satisfy the ‘competence’ element of the ‘fit and property [sic] person’ requirement in s 20-5(1)(a) of the Tax Agent Services Act 2009 (Cth) by reason that:

b.    the Tribunal had regard only to events in 2011 and 2013 and gave no consideration to any other evidence concerning the First Applicant’s competence, including as at the date of hearing.

41    As I have said, the Tribunal heard the application for review in June and July 2016 and delivered its decision in October 2016. It acknowledged, correctly, that in determining whether Mr Juneja was a fit and proper person it may take into account facts and circumstances occurring after the Board made its decision.

42    The applicants submitted that the Tribunal, in considering Mr Juneja’s competence, focussed only on events which occurred between 2011 and 2013 and did not consider other evidence which was, in fact, favourable to him.

43    On the appeal, the applicants pointed to evidence Mr Juneja gave before the Tribunal about his practice as a tax agent from 2013 to the date of the hearing. Mr Juneja said that:

(1)    he has been a “lot more vigilant” with his own tax affairs and he has lodged everything on time and, when he has not been able to do that, he has applied for extensions;

(2)    he has had a “bad run” with staff upon whom he relies “very heavily” to manage his lodgement obligations;

(3)    as at June 2016, he was responsible for approximately 2,500 individual tax returns and he manages 98 self-managed superannuation funds in his practice;

(4)    he manages “200-odd” companies, trusts and business entities in his practice;

(5)    he has not had any problems with the ATO and all audits are conducted professionally and information is provided; and

(6)    apart from this matter, he had not done anything wrong and describes his record in the 15 years he has been in Australia as “impeccable”.

44    The applicants submitted that the Tribunal was bound to take this evidence into account on the issue of competence, together with Mr Juneja’s relative immaturity. The failure to do so meant that it had not properly addressed the issue of competence. The applicants submitted that, in the circumstances, the Tribunal’s approach of confining itself to the period between 2011 and 2013 was an error of law.

45    The following matters are relevant to the determination of this Question of Law and Ground of Appeal.

46    First, the Tribunal is an administrative body and it is well-settled that the reasons of such a body “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 272.

47    Secondly, the applicant must establish first that the Tribunal overlooked the evidence or the inference of competence which might be said to arise from the evidence, and secondly, that that amounted to an error of law. As to the first matter, the Full Court of this Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 said (at [46]-[47]):

46    It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

47    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

As to the second matter, even if it is concluded that there was a failure to address particular evidence, that does not of itself amount to an error of law. It might have meant no more than that the Tribunal committed an error of fact or some other failing not amounting to a failure to take into account a relevant consideration or asking itself the wrong question (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97] per McHugh, Gummow and Hayne JJ; LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166 (LVR v AAT) at [143]-[144]) or drawing a conclusion that it was reasonably open to make a finding when it was not so open (Haritos and Another v Federal Commissioner of Taxation (2015) 233 FCR 315 (Haritos) at [217]).

48    It is not clear to me on what basis Mr Juneja contends that his adverse conduct is limited to the period from 2011 to 2013 when the Tribunal found further failures to lodge income tax returns and business activity statements (see [23] above) and the taxation liabilities remain outstanding.

49    In any event, the evidence Mr Juneja gave which I have summarised above at [43] was very general in its terms. Furthermore, reading the passage as a whole, it is not entirely clear that it related only to the period from 2013 onwards. For example, I note the reference to having a “bad run” with staff and Mr Juneja’s record since coming to Australia. In addition, it seems to me that it was perfectly open to the Tribunal to reach the conclusion it did on competence even taking the evidence into account. In other words, it was open to the Tribunal to conclude on the basis of Mr Juneja’s conduct in relation to Cudmores that he did not satisfy the competence requirement of fit and proper person. Finally, it may be that the Tribunal had the evidence in mind (in part at least) when it alluded to Mr Juneja’s history as an accountant in paragraph 45 of its reasons.

50    I am not satisfied that the Tribunal overlooked the evidence. Even if it did, I am not satisfied that that gave rise to an error of law. The relevant consideration is competence and the Tribunal addressed that issue. There was no complaint about the Tribunal’s formulation of the meaning of competence and the Tribunal did not ask itself the wrong question. As I have already said, it was open to the Tribunal to reach the conclusion it did on competence on the basis of the matters which it identified.

51    Question of Law 2 and Ground of Appeal 1b must be rejected.

Questions of Law 3, 4 and 6/Grounds of Appeal 2a, 2b, 3a and 3b

52    These Questions of Law and Grounds of Appeal are in the following terms:

Questions

3.    Whether the Tribunal erred in failing to give reasons for its conclusion at [7(a)].

4.    Whether the Tribunal erred in failing to give reasons for its conclusion at [52].

6.    Whether the Tribunal erred at [57] in making a conclusion that had no evidentiary or logical basis.

Grounds

2.    The Tribunal erred in concluding at [53] that the First Applicant does not satisfy the ‘character’ element of the ‘fit and proper person’ requirement s 20-5(1)(a) of the Tax Agent Services Act 2009 (Cth) by reason that:

a.    the Tribunal did not give any reasons at [7(a)] for concluding that “the available evidence shows … the Applicant made the telephone call” to the ATO on 13 June 2013 in circumstances where:

i.    the Tribunal stated at [6] that “[t]he Applicant does not deny making the call”; and

ii.    the Tribunal stated at [44] that “the Applicant is not even willing to admit making that call”.

b.    the Tribunal did not give any reasons for concluding at [52] that “the Applicant made such an allegation [viz that Mr Anthony Ryan may have been the person who made the telephone call to the ATO in June 2013] in sworn evidence in an attempt to deflect responsibility for the ATO telephone call” in circumstances where the evidence of the Applicant was that:

i.    he did not have any recollection of making the phone call (at T39);

ii.    it was possible that he made the phone call but he did not recall speaking to the tax office in that instance (at T39);

iii.    it could have been the Applicant who made the phone call (at T42 and T44); and

iv.    it could also have been Mr Ryan making the phone call, pretending to [be] the Applicant, as he has impersonated him in the past and had access to the Applicant’s personal details (at T45);

3.    The Tribunal erred in concluding at [58] that the First Applicant does not satisfy the ‘contrition’ element of the ‘fit and proper person’ requirement s 20-5(1)(a) of the Tax Agent Services Act 2009 (Cth) by reason that:

a.    the Tribunal did not give any reasons at [7(a)] for concluding that “the available evidence shows … the Applicant made the telephone call” to the ATO on 13 June 2013 in circumstances where:

i.    the Tribunal stated at [6] that “[t]he Applicant does not deny making the call”; and

ii.    the Tribunal stated at [44] that “the Applicant is not even willing to admit to making that call”;

b.    by reason of not having given reasons at [7(a)] for concluding that the Applicant made the telephone call to the ATO on 13 June 2013, there was no basis for the Tribunal to conclude at [57] that: “the Applicant even sought to blame Mr Ryan for making the telephone call to the ATO and accused him of pretending to be the Applicant on a number of previous occasions” was a factor that weighed against the Applicant in considering the contrition element, in circumstances where the evidence of the Applicant was that:

i.    he did not have any recollection of making the phone call (at T39);

ii.    it is possible that he made the phone call but he did not recall speaking to the tax office in that instance (at T39);

iii.    it could have been the Applicant who made the phone call (at T42 and T44); and

iv.    it could also have been Mr Ryan making the phone call, pretending to [be] the Applicant, as he has impersonated him in the past and had access to the Applicant’s personal details (at T45);

53    These Questions of Law and Grounds of Appeal relate to the Tribunal’s findings in connection with the alleged telephone call between Mr Juneja and an officer of the ATO on 13 June 2013. Before identifying the grounds of challenge, it is necessary to summarise the respective cases of the parties and to set out the Tribunal’s findings with respect to the alleged telephone call.

54    In the Respondent’s Statement of Issues, it asserted the following as a fact:

12.    On 13 June 2013, the Individual Applicant [Mr Juneja] informed the Australian Taxation office (ATO) that the trustee of the Trust was “a company and not an individual”, and was asked to provide a copy of the Trust Deed to the ATO (S4/8).

55    In Mr Juneja’s response, he said:

6.    In regards to Paragraph 12 of the Statement of Issues, I dispute that I told the trustee of the Trust was a company and not an individual. What I said and what I provided was a Trust Deed because it is the Trust who is responsible for the debt and not the company.

56    The ATO had a record of the telephone call which showed the caller identifying himself as “Hemanshu” (which is Mr Juneja’s first name) and as saying that the trustee of the Trust was “a company and not an individual”. The caller was asked to provide a copy of the trust deed to the ATO.

57    Mr Juneja was extensively cross-examined about the telephone call. He said:

(1)    he has no recollection of the call (T35/30, T36/34, T39/2);

(2)    he would not have said what the ATO alleges he said (T35/40, T36/25);

(3)    it is possible that he may have made the call, but he does not recall speaking to the ATO “in this instance” and, in any event, was not authorised to discuss any dealings about the Trust (T39/5);

(4)    a sound recording of a conversation between two members of the ATO while Mr Juneja was allegedly on hold was played to Mr Juneja and he was asked whether it could have been him on the telephone. He said “It could have” (T42/40);

(5)    when Mr Juneja was referred to the lodgement dates of income tax returns and business activity statements, at one point he said of the alleged call:

It could be one of the phone calls I have made. It could be.

(T44/29);

(6)    Mr Juneja was pressed again about whether he made the telephone call on 13 June 2013:

Can I bring you back though to my question which is – all I’m asking you is do you now accept after hearing that call that you called – you probably called the tax office on 13 June 2013 which was after those dates that you’ve referred to in paragraph 9?---Probably. It could have been me. I do not know for certain though. Unless there was a full ID done and - - -

Well you heard that part of the call. What she said was she asked for your agent number ---?---But you misunderstand - - -

and you gave your agent number - - -?---Sorry. But you misunderstand, these records – my tax file number, my date of birth, my address, all is on our central system – the accounting software that we use in the practice. It could have been anybody from the office. It could have been anybody from the office making that call and - - -

You’re not suggesting they pretended to be you because she said it was Hemanshu?---Mr Tony Ryan has pretended to be me in the past and I have had to correct on a lot of instances those problems that – for example, you’ve got here - - -

Sorry, just so I’m clear on what you’re saying. Are you saying that this call made in June 2013 – that that could have been Anthony Ryan pretending to be you?---Could be.

That’s your evidence?---Could be.

(T45/1-26).

58    Mr Anthony Ryan gave evidence before the Tribunal. He was asked in evidence-in-chief whether he made the telephone call on 13 June 2013:

Now, Mr Juneja suggested earlier today in his evidence that there was a possibility, he didn’t recall making the call, and there was a possibility that you in fact called the Tax Office pretending to be him. What do you say about that?---No, absolutely not.

Can you be sure of that?---Very sure.

He said that you had pretended to be him on previous occasions. Is there any truth to that?---None whatsoever.

You deny that?---Absolutely.

(T104/1-11).

Mr Ryan was not cross-examined about this evidence.

59    The Tribunal said that Mr Juneja did not deny making the telephone call, but had a different version of what was said. It found that Mr Juneja made the telephone call at a time when he was the sole director and shareholder of Cudmores. The topics discussed were the Trust, the trust deed for the Trust and a debt owed by the trustee of the Trust. The Tribunal put the matter in the following way (at [6]-[7]):

6.    On 13 June 2013, the Australian Taxation Office (“ATO”) received a telephone call from a person identifying themselves as “Hemanshu”, and the ATO’s record of that telephone call indicates that the caller told the ATO the trustee of the Trust was “a company and not an individual”. The caller was asked to provide a copy of the trust deed to the ATO. The Applicant does not deny making the call, but he does deny telling the ATO the trustee of the Trust was a company and not an individual. According to his evidence, the Applicant said:

“What I said and what I provided was a Trust Deed because it is the Trust who is responsible for the debt and not the company”

7.    However, the available evidence shows:

(a)    The Applicant made the telephone call;

(b)    The telephone call was made on 13 June 2013, when the Applicant was the sole director and shareholder of Cudmores;

(c)    The caller and the ATO representative discussed the Trust, the trust deed for the Trust and a debt owed by the trustee of the Trust.

60    In addressing Mr Juneja’s competence, the Tribunal made reference to the failure to enter into any appropriate repayment arrangements and said (at [44]):

… In fact, the only record of any contact between the Applicant and the ATO about the relevant taxation liabilities are the records relating to the telephone call in June 2013, and the Applicant is not even willing to admit making that call. …

61    In addressing Mr Juneja’s character, the Tribunal said (at [52]):

Finally, the Board submits that the Applicant has repeatedly attempted to deflect responsibility for his actions as the sole director and shareholder of Cudmores to Mr Anthony Ryan and other former staff of Cudmores. At one point the Applicant suggested that Mr Anthony Ryan may have been the person who made the telephone call to the ATO in June 2013. He also asserted on oath that Mr Ryan had impersonated him on a number of previous occasions. Mr Ryan emphatically denied making the ATO telephone call or pretending to be the Applicant in his oral evidence. The Applicant’s counsel did not challenge that evidence in cross-examination. In my opinion, the fact that the Applicant made such an allegation in sworn evidence in an attempt to deflect responsibility for the ATO telephone call to Mr Ryan reflects very poorly on his character.

62    In addressing Mr Juneja’s contrition or lack thereof, the Tribunal said (at [57]):

The Applicant was given at least three opportunities to express contrition during his evidence in chief. However, he instead repeatedly referred to his own conduct in positive terms, at the same time as referring to current and former work colleagues in negative terms. During his cross-examination, the Applicant continued to cast himself in a positive light and to attribute the blame for what has occurred to others. For example, it was Mr Ryan’s fault for not telling him about the Trust, and it was Mr Ryan’s fault for not giving him a proper handover. As indicated previously, the Applicant even sought to blame Mr Ryan for making the telephone call to the ATO and accused him of pretending to be the Applicant on a number of previous occasions. In my view, none of this gives me any reason to be confident that the Applicant has learned from his past mistakes and is unlikely to repeat such conduct in the future.

63    I do not find the applicants’ submissions which challenge the Tribunal’s findings and conclusions about the telephone call easy to follow. They start with the proposition that the Tribunal had a duty to give adequate reasons for the findings it made and they rely on Resource Pacific v Wilkinson at [48] per Basten JA (with whom Beazley JA agreed). That proposition may be accepted at a general level (see also s 43 of the Administrative Appeals Tribunal Act). The applicants submit that the Tribunal did not give adequate reasons for finding that Mr Juneja made the telephone call. The applicants’ submission was that to make a reference to the “available evidence” and to the fact that Mr Juneja did not deny making the telephone call and later to say that he was not even willing to admit making the telephone call was not a fair summary of Mr Juneja’s evidence. They referred to a number of the matters which I have summarised above (at [57]). I reject this submission. The Tribunal was entitled to make the finding it did on the basis of the ATO record and the fact that Mr Juneja did not deny making the telephone call. It is also relevant that the Tribunal accepted Mr Ryan’s evidence that he did not make the telephone call (at [58]). The applicants also submitted that the Tribunal did not give adequate reasons because it simply repeated the Board’s submission. I will deal with this aspect of the applicants’ challenge in the broader context of the general submission the applicants made to this effect.

64    The applicants submitted that the Tribunal’s finding in paragraph 52 of its reasons that Mr Juneja’s assertion that it was Mr Ryan who made the telephone call was an attempt to deflect responsibility was not supported by the evidence. I reject this submission. It does not reflect the Tribunal’s finding which was:

At one point the Applicant suggested that Mr Anthony Ryan may have been the person who made the telephone call to the ATO in June 2013.

(Emphasis added).

65    The applicants submitted that the unstated premise in the Tribunal’s findings is that Mr Juneja recalled making the telephone call and falsely refused to acknowledge personal responsibility for his own conduct and he was falsely blaming another and that this was never put to him in cross-examination. I reject this submission. The Tribunal was entitled to find that Mr Juneja made the telephone call and it was entitled to reject Mr Juneja’s evidence that he could not recall making the telephone call. That was plainly the tenor of the cross-examination of Mr Juneja and the finding in paragraph 52 set about above (at [61)] was, as I have said, open on the evidence.

66    Questions of Law 3, 4 and 6 and Grounds of Appeal 2a, 2b, 3a and 3b must be rejected.

Question of Law 5/Ground of Appeal 2c

67    This Question of Law and Ground of Appeal are in the following terms:

Question

5.    Whether the Tribunal erred at [48] in finding that the First Applicant as sole director and sole shareholder had the use of monies to which he was not entitled when there was no evidence to support the finding that the First Applicant personally used those monies.

Ground

2.    The Tribunal erred in concluding at [53] that the First Applicant does not satisfy the ‘character’ element of the ‘fit and proper person’ requirement s 20-5(1)(a) of the Tax Agent Services Act 2009 (Cth) by reason that:

c.    the Tribunal found that the First Applicant as sole director and sole shareholder had the use of monies to which he was not entitled (at [48]) when, in fact, there was no evidence to support the finding that the First Applicant personally used those monies. On the contrary, there is evidence to show that the First Applicant did not ever receive the benefit of those monies.

This question is expressed in terms of there being no evidence to support a finding. The Tribunal’s finding is said to be that Mr Juneja as sole director and sole shareholder of Cudmores had the use of monies.

68    The Tribunal’s findings were made in the context of it addressing Mr Juneja’s character and were as follows (at [48]):

48    The Applicant denied using any of the GST or PAYG that was collected but never remitted to the ATO to establish or run any of his other businesses or pay debts. However, notwithstanding this, he clearly failed to ensure that Cudmores paid all of the GST, PAYG and other tax liabilities as and when they fell due. Cudmores, and the Applicant as its sole director and shareholder, therefore had the use of monies that they were not entitled to be holding. That gave them an advantage over other taxpayers in the same industry who fulfilled their obligations. The Board submits that this suggests a lack of good faith, integrity and character in the context of the Applicant’s obligations as the sole director of Cudmores and, more significantly, as a registered tax agent.

69    It is in the context of this Question of Law and Ground of Appeal that the applicants made an application under r 33.29 of the Federal Court Rules 2011 (Cth) to adduce further evidence on the appeal. The further evidence consisted of the following:

(1)    a document purportedly signed by Mr A Ryan and CIBS Nominees Pty Ltd on or about 19 December 2016 whereby Mr Ryan as appointor of the Cudmores Integrated Business Solutions Trust appoints CIBS Nominees Pty Ltd as the new trustee of the Trust; and

(2)    an ASIC record which shows that Mr A Ryan owns and controls CIBS Nominees Pty Ltd.

70    This further evidence was said to show that the benefit of any monies retained by Cudmores (i.e., not paid to the ATO) were for the benefit of the Trust and the beneficiaries of the Trust. Mr Juneja or any company of which he was associated had no interest in the Trust. In response to the proposition that it was not for this Court to make findings of fact contrary to those findings made by the Tribunal or to make findings of fact which have not been made by the Tribunal, the applicants submitted that at the least, the evidence was relevant to any argument of futility which might be put by the respondent. The respondent said that it was not putting a futility argument should an error of law be made out.

71    I reject the applicants’ substantive argument.

72    In my opinion, the argument is resolved by a proper interpretation of what the Tribunal was saying in the above passage. The Tribunal was not saying that Mr Juneja had used the monies to establish or run any of his other businesses or pay debts. I think that is clear from the Tribunal’s use of the words, “However, notwithstanding this”, which I take to mean, even accepting this. Rather, I think the Tribunal was saying that by not paying the monies, the company received a benefit as did Mr Juneja as sole director and shareholder of the company. That conclusion was open to the Tribunal. It is not as weighty a matter as it would have been if Mr Juneja had personally used the monies, but it cannot be said that it is irrelevant.

73    In light of my construction of the Tribunal’s finding, the further evidence is irrelevant. I refuse the application to adduce it.

74    Question of Law 5 and Ground of Appeal 2c must be rejected.

Question of Law 7/Ground of Appeal 3c

75    This Question of Law and Ground of Appeal are in the following terms:

Question

7.    Whether the Tribunal erred at [54]-[55] in giving the Applicant no credit for the payment he has made to the ATO of $50,000 and his promise to make further payments.

Ground

3.    The Tribunal erred in concluding at [58] that the First Applicant does not satisfy the ‘contrition’ element of the ‘fit and proper person’ requirement s 20-5(1)(a) of the Tax Agent Services Act 2009 (Cth) by reason that:

c.    the Tribunal, at [54]-[55], gave the Applicant no credit for the payment he has made to the ATO of $50,000 and his promise to make further payments.

76    As I have said earlier, in mid-2014, the Board refused to renew Cudmores’ registration as a tax agent. At that time, Cudmores’ outstanding taxation liabilities were over $500,000. In January 2015, Mr Juneja had arranged for Cudmores to make a repayment of $50,000 to the ATO. At the date of its deregistration (i.e., 6 April 2015), Cudmores’ outstanding taxation liability was $583,775.98.

77    In dealing with contrition, the Tribunal said (at [54]-[55]):

54    Despite all the evidence given during the hearing, the Applicant has maintained his refusal to admit that Cudmores was the trustee of the Trust and that he was therefore not responsible for the significant taxation liabilities incurred by Cudmores after he became its sole director and shareholder in 2011. In that context, it is not surprising that he has not given any genuine acknowledgement of wrongdoing. On his case, there should be no reason for him to apologise, because his company was not legally responsible for the taxation liabilities incurred by the business trading through the Trust. Of course, it is difficult to reconcile that positon with the Applicant’s payment of $50,000 to the ATO and his stated willingness to pay the ATO any further money he may receive from the sale of the Cudmores business.

55    The Board has submitted (and I further agree) that the Applicant cannot have it both ways. …

78    The applicants submitted that the two propositions identified in this passage are not inconsistent because Mr Juneja can genuinely hold the belief that the company was not liable for the taxation liabilities because it was not the trustee of the Trust and at the same time receive credit for the payment of $50,000 and his stated willingness to pay the ATO any further money he may receive from the Cudmores business.

79    I reject this submission. The matter is not properly resolved by asking whether the applicants, and more particularly Mr Juneja, should be “given credit” for an act. The issue relates to contrition and in that context the Tribunal did not err in concluding that a payment with a denial of liability did not show that even to an extent Mr Juneja “appreciates the significance of [their] wrongdoing, has expressed remorse …” (see the definition of contrition set out above at [27]).

80    Question of Law 7 and Ground of Appeal 3c must be rejected.

Question of Law 8/Ground of Appeal 4

81    This Question of Law and Ground of Appeal are in the following terms:

Question

8.    Whether by reason of the above questions the Tribunal erred in concluding that the First Applicant:

a.    (at [46]) does not satisfy the ‘competence’ element of the ‘fit and proper person’ requirement in s 20-5(1)(a) of the Tax Agent Services Act 2009 (Cth);

b.    (at [53]) does not satisfy the ‘character’ element of the ‘fit and proper person’ requirement s 20-5(1)(a) of the Tax Agent Services Act 2009 (Cth);

c.    (at [58]) does not satisfy the ‘contrition’ element of the ‘fit and proper person’ requirement s 20-5(1)(a) of the Tax Agent Services Act 2009 (Cth); and

d.    (at [60]) therefore is not a fit and proper person for the purposes of s 20-5(1)(a) of the Tax Agent Services Act 2009 (Cth).

Ground

4.    By reason of the errors identified in Grounds 1, 2 and 3, the Tribunal erred in concluding at [60] that the First Applicant is not a fit and proper person for the purposes of s 20-5(1)(a) of the Tax Agent Services Act 2009 (Cth), which conclusion was not reasonably open on the evidence before the Tribunal or the findings made by the Tribunal.

82    Question of Law 8 is, in effect, linked to the earlier questions and grounds. One or more of them must be made out in order to engage the question. The effect of the question and ground seems to be to make the point that, assuming one of the earlier grounds is made out, the error is an error of law because it involved reaching a conclusion not reasonably open on the evidence before the Tribunal (Haritos at [217]). As none of the errors are made out, the Question of Law and Ground of Appeal must be rejected.

Ground of Appeal 5

83    I granted the applicants leave to amend their Amended Notice of Appeal to add a Ground of Appeal in the following terms:

5.    By reason of the extent of the copying of the respondent’s written submissions and without reference to the applicants’ submissions and evidence, the Tribunal constructively failed to exercise its jurisdiction.

Perhaps the applicants should also have been required to formulate a Question of Law as part of the amendment, but nevertheless, I am satisfied that this ground does raise a question of law.

84    The applicants put their submission in the following way. Both parties prepared closing written submissions and put those submissions before the Tribunal. The applicants submitted that the Tribunal copied and included in its reasons, large parts of the respondent’s closing written submissions. The copying was not limited to background facts, but included key findings and conclusions of the Tribunal. The applicants put forward a table showing paragraphs in the Tribunal’s reasons and their counterparts in the respondent’s closing written submissions. That table is set out below. For its part, the respondent, for the assistance of the Court, provided a copy of the Tribunal’s reasons with additions and deletions, including paragraph numbers, which showed where the Tribunal’s reasons correspond or do not correspond, as the case may be, with the respondent’s closing written submissions.

85    The applicants submitted that the greater part of the Tribunal’s reasons consist of “the mostly uncritical adoption by the Tribunal of the Respondent’s submissions, copied verbatim”. The applicants submitted that this is “particularly concerning where it relates to key issues and adverse findings made against the Applicants” and that the Tribunal’s approach casts “serious doubt upon whether the Tribunal engaged in the active intellectual process necessary for the exercise of the jurisdiction reposed in it”. In oral submissions, the applicants went further than a claim of a serious doubt and submitted that the Tribunal had not exercised the jurisdiction reposed in it. The applicants referred to the decision of the Full Court of this Court in LVR v AAT.

86    There is very little authority on the point in issue. There are cases where an applicant has claimed that a Tribunal did not carry out its review function because it used standard paragraphs, that is to say, paragraphs found in other Tribunal decisions (WAFK v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 209; Minister for Immigration and Citizenship v SZLSP and Others (2010) 187 FCR 362). That is not this case. There is, of course, the principle that the decision-maker must give genuine consideration to the issues he or she is required to address (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [105] per Gleeson CJ and Gummow J). Extensive copying may reflect a failure to discharge that obligation. There are cases where an applicant has claimed that a lower court has simply copied the submissions of one of the parties and, therefore, not provided adequate reasons or carried out its function properly (Commissioner for Railways for the State of Queensland v Peters and Another (1991) 24 NSWLR 407). Again, that is not this case because, as the Full Court noted in LVR v AAT at [81] and [98], the respective positions of Courts and Tribunals differ. The closest authority to which I was referred was, in fact, LVR v AAT. Even that case does not provide binding guidance, in that the actual basis of the decision was that the Tribunal’s decision should be set aside because the Tribunal had failed to take into account a relevant consideration, namely, the applicants’ explanation for their failure to comply with the Tribunal’s directions. The Court did discuss the issue at length, but expressly said that it was not deciding the case on that basis (at [5]). Nevertheless, the decision is, with respect, helpful because it indicates that extensive copying of a party’s submissions may lead to the conclusion that there has been a constructive failure by the Tribunal to exercise its jurisdiction whether that is because the Tribunal has failed to disclose its reasoning or otherwise (at [91]). The decision is also helpful because it identifies some of the matters which are relevant in terms of assessing the significance of copying. They include the extent of the copying, the extent of attribution, if any, and the significance of what is copied, ranging from an undisputed fact at one end of the spectrum, to core reasoning at the other end of the spectrum.

87    The Tribunal’s reasons consist of 62 paragraphs which may be broadly divided by reference to the headings into the following: Introduction (paragraphs 1 to 2 inclusive), Material Background (paragraphs 3 to 28 inclusive), Legal Framework and Legislation (paragraphs 29 to 31 inclusive), Relevant Policy (paragraphs 32 to 34 inclusive), Issues (paragraph 35), Relevant Cases (paragraphs 36 to 39 inclusive), (and ignoring subheadings for present purposes) Consideration (paragraphs 40 to 60 inclusive), Conclusion (paragraph 61) and Decision (paragraph 62).

88    The applicants’ table was as follows:

89    By and large, this table is a fair representation of what has occurred. I say “by and large” because one might argue about one or two of the entries and the extent to which it is appropriate to describe the reproduction as substantively identical on the one hand, or similar or very similar on the other. The comparison suggests that the Tribunal accepted the respondent’s statement of the relevant facts and, as to the critical matters of competence, character and contrition, it accepted the respondent’s submissions, on a number of occasions, using the same phraseology. I do not know how the Tribunal prepared its reasons. However, it seems reasonable to infer that the Tribunal accepted the factual background outlined by the respondent and simply repeated it and then worked its way through the respondent’s submissions in preparing its reasons. That does not mean that it did not consider the applicants’ case or engage in an active intellectual process in accepting the respondent’s submissions.

90    In addition, the following matters are to be noted.

91    First, many of the factual matters stated by the Tribunal were either expressly not in dispute or were not reasonably capable of being disputed. Apart from the alleged telephone call on 13 June 2013, I cannot see anything in the matters in the sections headed Introduction and Material Background which were or could be seriously in dispute. I say that, having regard to the material before the Tribunal and this Court, in particular, the Respondent’s Statement of Issues and the applicants’ response to that document. There was nothing contentious in this case about the matters in the sections headed Legal Framework and Legislation, Relevant Policy and Relevant Cases. As to the Statement of Issues, the Tribunal’s reasons reflected the issues which the parties agreed before the hearing were the issues. In my opinion, in the ordinary case at least, it would be prudent, not a matter for criticism, to state the issues in terms of the parties’ agreement as to the issues. The “lack” of attribution is of no significance in this context.

92    Secondly, the Tribunal did, from time to time in its reasons, refer to submissions of the applicants and did acknowledge that it was repeating or summarising or referring to a submission made by either the applicants or the respondent. In that section of the reasons appearing under the heading Consideration, there are the following subheadings: Competence (paragraphs 41 to 46 inclusive), Character (paragraphs 47 to 53 inclusive), Contrition (paragraphs 54 to 58 inclusive), and the Board’s Submissions (paragraphs 59 to 60 inclusive). In considering competence, the Tribunal referred to a submission of the Board and a submission of the applicants (paragraph 46). In considering character, the Tribunal referred to three submissions of the Board, the fact that counsel for Mr Juneja did not cross-examine on a particular topic and a submission by the applicants (at [52]-[53]). In considering contrition, the Tribunal referred to the Board’s submissions on four occasions ([55], [56] and [58]) as well as in its concluding paragraphs ([59] and [61]).

93    Thirdly, the Tribunal, whilst repeating a number of the respondent’s submissions, did not simply adopt or copy all of the respondent’s submissions. Some examples will suffice. The Tribunal in paragraphs 41 to 44 inclusive of its reasons reproduce a number of the statements in paragraphs 57 to 67 inclusive of the respondent’s written submissions, but did not include paragraph 60, part of the last sentence in paragraph 59, and the first sentence in paragraph 61 and the changes made by the Tribunal to paragraphs 68 to 70 inclusive of the respondent’s written submissions as reflected in paragraphs 45 and 46 inclusive of its reasons. Another example is to compare paragraph 55 of the Tribunal’s reasons with paragraphs 89 – 91 of the respondent’s closing written submissions:

55    The Board has submitted (and I further agree) that the Applicant cannot have it both ways. He cannot simultaneously refuse to accept responsibility for the taxation liabilities incurred by Cudmores while he was its sole director and shareholder, but expect to receive credit for making payments to discharge those liabilities. He also cannot properly claim to have acknowledged his wrongdoing and to have learned lessons from his previous conduct while he is still seeking to deflect responsibility for what he did to Mr Ryan and/or other former staff members of Cudmores. Given what is stated at paragraph 42 above about the Applicant’s duties as a director of Cudmores, the Board further submits that he should not be permitted to deflect responsibility for the tax affairs of Cudmores to other office holders, staff or former staff of Cudmores, particularly after he became its sole director on 12 January 2011.

(Emphasis added.)

89    The Individual Applicant cannot have it both ways. He cannot simultaneously refuse to accept responsibility for the taxation liabilities incurred by Cudmores while he was its sole director and shareholder but expect to receive credit for making payments to discharge those liabilities. He also cannot properly claim to have acknowledged his wrongdoing and to have learned lessons from his previous conduct while he is still seeking to deflect responsibility for what he did to Mr Ryan, Ms Curnow and/or other former staff members of Cudmores.

90    In Re and Tax Agents’ Board SA (1982) 13 ATP 192, Cook J relevantly stated (at pp 196-197):

The failure to lodge his personal income tax returns and the failure to pay on time the group tax instalments suggests incompetence on [the agent’s] part. In his evidence before me, [the agent] placed the blame on other persons …

… [The agent] has laid the blame upon other persons in his practice. But all these matters were matters with respect to which [the agent] had ultimate responsibility and the duty to take a personal interest. The problems that arose reflect upon his competence.

91    Given what is staged at [62]-[64] above about the Individual Applicant’s duties as a director of Cudmores, the Respondent submits that he should not be permitted to deflect responsibility for the tax affairs of Cudmores to other office holders, staff or former staff of Cudmores – particularly after he became its sole director on 12 January 2011.

The comparison reveals that in paragraph 55 of its reasons, the Tribunal has acknowledged the source of the submissions and has not included paragraph 90 of the respondent’s submissions.

94    Having regard to all of these considerations, I am not satisfied that such copying as has occurred means that the Tribunal has failed to bring its own mind to the issues and thereby constructively failed to exercise jurisdiction.

95    Ground of Appeal 5 must be rejected.

Conclusion

96    The applicants have not established an error of law and the appeal must be dismissed.

Associate:    

Dated:    10 August 2017