Federal Court of Australia
Parr v Commissioner of Taxation  FCA 678
DATE OF ORDER:
THE COURT ORDERS THAT:
1. The time for filing a notice of appeal from the decision of the Administrative Appeals Tribunal made 7 July 2021 be extended to 11 March 2022.
2. Costs reserved.
1 In November 2019 Ronald Parr commenced an application in the Administrative Appeals Tribunal for review of objection decisions of the Deputy Commissioner of Taxation relating to his income tax assessments.
2 A series of case management hearings were conducted by the Tribunal in May, July, October and November 2020. On 15 January 2021 the Tribunal conducted a 'dismissal hearing' but declined to dismiss the proceeding summarily: Parr and Commissioner of Taxation  AATA 2038.
3 On 27 April 2021 the Tribunal conducted a directions hearing at which it summarily dismissed the proceeding brought by Ronald Parr as a result of Mr Parr's non-appearance. The hearing had been convened because of Mr Parr's non-compliance with various directions.
4 On 7 July 2021 the Tribunal refused Mr Parr's application for reinstatement of the review proceeding: Parr and Commissioner of Taxation  AATA 2240. Mr Parr seeks an extension of time to appeal this decision, his notice of appeal having been filed in this Court two days out of time.
5 The issue to be decided is not whether the Tribunal was in error in its decision to refuse reinstatement, although the merits of the proposed application can properly be taken into account. Rather, the issue is whether an extension of time to institute an appeal to this Court should be granted.
6 Part of the overarching context of the applications and decisions is that at all relevant times Mr Parr has been serving a sentence of imprisonment in various prisons within Western Australia. It can be accepted that his incarceration has caused him practical difficulties. Those difficulties include limitations on his access to documents, computer services, telephone, accountants and lawyers. Those are difficulties faced by offenders and litigants generally when serving periods of imprisonment, but are of some weight when compared with the position of persons navigating Tribunal and court proceedings whilst in the community.
Events leading to dismissal
7 The conduct on Mr Parr's part that called for a series of case management hearings was his failure to file a statement of facts, issues and contentions (SFIC) and any material he intended to rely upon at the final hearing in accordance with timetabling directions, and his repeated requests for further time. It is necessary to provide some details of the procedural history.
8 Between April 2020 and June 2020 the Commissioner filed and served the documents it was required to file under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) (which according to an affidavit filed on behalf of the Commissioner in this application ran to some 2,224 pages) and filed its SFIC.
9 Case management hearings were conducted in May 2020 and July 2020. Mr Parr wrote to the Australian Government Solicitor (AGS) in May 2020 providing some information and requesting that the AGS track down other information, a request which the AGS was not required to meet. The Commissioner filed supplementary s 37 documents (47 pages). At the July 2020 hearing Mr Parr successfully sought an extension of time until 2 October 2020 to file his documents, having obtained pro bono assistance from the Curtin Tax Clinic, a course suggested by the Tribunal. The AGS also wrote to Mr Parr in person and suggested that if he needed additional information he should issue a summons.
10 The Curtin Tax Clinic sought copies of the s 37 documents from the AGS in August 2020. Following a further hearing on 12 October 2020, the Tribunal granted Mr Parr a further extension of time to 26 October 2020. On 14 October 2020 the Tribunal wrote to the parties informing them that a directions hearing had been listed on 2 November 2020 and that:
The Tribunal notes that any further non-compliance on behalf of the Applicant will result in the [2 November 2020 hearing] being used to discuss setting the matter down for a dismissal hearing.
11 During October 2020 Mr Parr retained the law firm Cooper Webb Lawyers to act on his behalf in the Tribunal proceedings.
12 Mr Parr continued to fail to comply with the directions of the Tribunal as to filing his documents. However, Cooper Webb Lawyers wrote to the AGS requesting a period of six to nine months to facilitate the amendment and re-lodgement of Mr Parr's tax returns. That request was rejected by the AGS. A settlement offer was also apparently made, that was also rejected on the basis that it would not be considered until judgment was entered in separate proceedings that were at that time on foot in this Court (judgment has since been entered: Commissioner of Taxation v Parr  FCA 156).
13 At the 2 November 2020 hearing the Tribunal decided to list the matter for a dismissal hearing on 15 January 2021, and required submissions from Mr Parr by 8 January 2021.
14 On 18 December 2020 Cooper Webb Lawyers filed and served a document referred to as Mr Parr's preliminary SFIC, which also included a submission that in light of issues with the assessments referred to in that document, the Tribunal should allow time for Ms Annette Morgan of the Curtin Tax Clinic to review Mr Parr's financial records and provide up to date information. Separate submissions were not filed. A covering letter set out reasons why it was said the further adjournment should be granted.
15 Following the hearing of 15 January 2021 the Tribunal determined that the proceeding should not be dismissed. It also directed that Mr Parr was to file his SFIC and all material on which he sought to rely at a hearing by 6 March 2021, warning that:
It almost goes without saying that further extensions are unlikely and that, in the event of further non-compliance, the Tribunal might revisit the question of dismissal or simply list the matter for hearing, whether the applicant is ready or not.
16 Mr Parr did not file the documents by 6 March 2021. On 8 March 2021 Cooper Webb Lawyers on his behalf sought an extension of time to comply until 20 March 2021, an extension which was not opposed by the Commissioner and was granted by the Tribunal (following email exchanges). The circumstances of the request for an extension were particular. At the time of the dismissal hearing, Ms Morgan was overseas for personal reasons (which were significant and explained) but it had been anticipated that Ms Morgan would return under a COVID-19 entry exemption and be in a position to undertake a review and provide 'correct' financials by 6 March 2021. On 31 January 2021 due to a change in COVID-19 directions the exemption was voided and Ms Morgan was unable to undertake the work in the time that had been planned.
17 On 15 March 2021 Mr Parr was apparently transferred to another prison where he was held in solitary confinement. On 26 March 2021 Cooper Webb Lawyers sought a further extension of time to comply with the directions of the Tribunal until 19 May 2021, referring to Mr Parr's change in circumstances and their inability to take instructions from him about the SFIC, apart from what was achieved during a 2.5 minute telephone call. The letter stated that Mr Parr expected to be returned to minimum security and have access to his documents in approximately two months.
18 On 19 April 2021 the Tribunal emailed Cooper Webb Lawyers requesting that they provide an affidavit in support of the further extension application, and said that:
This matter will then be listed for a Telephone Directions Hearing at 4:00PM AEST on 27 April 2021 to discuss the extension request and possible dismissal of this matter under s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth).
19 A notice of listing was also provided.
20 Relevantly s 42A(5) of the AAT Act provides:
If an applicant for a review of a decision fails within a reasonable time:
(a) to proceed with the application; or
(b) to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.
21 Mr Parr's solicitors failed to attend the hearing on 27 April 2021 to explain the non-compliance with the directions. The Tribunal proceeded to dismiss the proceeding under s 42A(2) of the AAT Act which relevantly provides:
If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:
(a) if the person who failed to appear is the applicant - dismiss the application without proceeding to review the decision; or
(b) in any other case - direct that the person who failed to appear shall cease to be a party to the proceeding.
22 On 30 April 2021 the Tribunal informed Mr Parr that the proceedings had been dismissed and enclosed a copy of the decision, which stated:
WHEREAS the Tribunal is satisfied the applicant was informed of the time and date of the directions hearing;
AND the applicant did not appear at the directions hearing in person or by representative:
Pursuant to section 42A(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses the applications.
Application for reinstatement
23 Mr Parr's solicitors (Mr Walt) provided a detailed letter to the Tribunal on 21 May 2021 requesting that the proceeding be reinstated pursuant to s 42A(9) of the AAT Act. That subsection relevantly provides:
If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
24 The letter explained that Mr Walt had not received the emails from the Tribunal of 19 April 2021 (being the emails requesting an affidavit and giving notice of the 27 April 2021 hearing). It is convenient to extract the relevant contents of the letter:
3. Grounds for Reinstatement
3.1 Failure to Appear
(1) On 16 April 2021 our office received an email (enclosed for ease of reference) from Mr Thomas deBes of the AGS requesting an affidavit of Annette Morgan to support our application for an extension of time.
(2) At no time was our office aware that the Tribunal had responded to the AGS's request or that the Tribunal had made orders for an appearance.
(3) On Friday, 23 April 2021 at 11:59 pm, the Perth and Peel region entered a snap lock−down due a confirmed case of COVID-19.
(4) The lockdown took place from Friday 23 April 2021 at 11:59 pm to Monday, 26 April 2021 at 11:59 pm.
(5) We returned to the office on Tuesday, 27 April 2021 being unaware that a directions hearing had been set for the matter.
(6) Upon receiving a call from the Tribunal on Tuesday 27 April 2021, we became aware that the matter had been listed for 4:00pm (AEST) that day and we had failed to appear.
(7) I reviewed my emails and it appeared that the emails from the Tribunal with regard to the proposed directions hearing had been automatically sent to the junk mailbox of my Outlook.
(8) As a result, I did not see the email and was completely unaware that the directions hearing was to take place.
3.2 Readiness to Proceed
(1) The requested affidavit of Annette Morgan has been prepared and sworn. Please find enclosed a copy of the affidavit of Annette Morgan.
(2) The Applicant's statement of facts, issues and contentions have also been prepared and are currently with the Applicant for the final sign off ahead of submission with the Tribunal. Please find enclosed a preliminary draft of the Applicant's statement of facts, issues and contentions.
(3) I note, the Applicant reserves the right to amend the Applicant's statement of facts, issues and contentions.
25 The letter attached an affidavit of Ms Morgan which addressed her absence overseas from 4 November 2020 to 4 February 2021, unexpected difficulties with hotel quarantine and isolation that followed her return, and the fact that because of those unexpected difficulties she was unable to commence working on a financial review of Mr Parr's position until 23 February 2021. Ms Morgan also addressed the difficulties in obtaining instructions from Mr Parr during March 2021 as he was unable to access documents and moved prisons. The affidavit attached a copy of the proposed SFIC. The proposed SFIC runs to some 114 paragraphs and concludes by setting out the amount that Mr Parr contends is his total tax liability. It is a relatively detailed document with documentary evidence referenced by footnote. Specific alleged errors in the assessments are identified. Ms Morgan indicated that the SFIC had not been approved by Mr Parr as 'we are struggling to obtain instructions to get the final sign off'.
26 On 7 June 2021 the Tribunal wrote to the AGS asking whether Mr Parr's application for reinstatement was opposed. On 8 June 2021 the AGS replied relevantly stating:
The respondent does not oppose the applicant's application to re-instate the proceedings and considers it a matter for the Tribunal.
27 On 14 June 2021 Mr Parr's solicitors formally filed the SFIC.
28 The Tribunal wrote to the parties by email of 15 June 2021 stating:
Notwithstanding the Respondent's consent to the applicant's application for reinstatement in this matter, the Tribunal is minded to list this matter for a reinstatement hearing to discuss the application further.
29 On 21 June 2021 the Tribunal provided a notice that referred to the listing of the reinstatement application but also referred to it as a 'directions hearing' and a 'case management directions hearing'. The notice then set out the purpose of the 'case management directions hearing' (which did not refer to any final determination, save for in the case of non-appearance). Perhaps because of the obvious confusion that the email of 15 June 2021 and the notice of 21 June 2021 might cause a party, a follow up email was sent by the Tribunal on 23 June 2021 that confirmed that 'this matter is listed for Interlocutory Hearing at 2:30PM AEST on 29 June 2021'.
30 The hearing proceeded on 29 June 2021.
31 Mr Walt (from Cooper Webb Lawyers) appeared at the hearing on Mr Parr's behalf. Counsel for the Commissioner appeared and, according to the Tribunal's reasons, despite the earlier indication that the reinstatement was not opposed, submitted that there were good reasons for refusing the application for reinstatement.
32 The Tribunal delivered its decision on 7 July 2021, declining to exercise its discretion to grant Mr Parr's application for reinstatement of the proceeding.
The Tribunal's reasons
33 The Tribunal took into account the following:
(a) it acknowledged Mr Walt's explanation for his non-attendance at the hearing on 27 April 2021, noting that 'COVID has been disruptive';
(b) it acknowledged Ms Morgan's affidavit to the effect that there had been delays caused by her personal circumstances;
(c) it referred to Mr Parr's incarceration as an ongoing source of delay, and acknowledged that access to prisoners has been 'necessarily limited';
(d) it referred to the fact it had been flexible in the past with timetabling but acknowledged that there remains potential for further delay, and delay should be expected 'given the strictures under which Mr Parr and the Western Australian Authorities operate';
(e) it noted that the more pressing concern is in relation to the prospects;
(f) Mr Walt did not put on any evidence about the applicant's prospects in the substantive review, and had not filed the material he intended to rely upon at the final hearing;
(g) Mr Walt indicated he would rely on the s 37 documents provided by the Commissioner and on the SFIC filed on behalf of Mr Parr;
(h) the Tribunal considered that it would be expected that statements in the SFIC would have been supported by evidence such as a statement from Mr Parr or a report from Ms Morgan;
(i) if an applicant is to discharge its burden under s 14ZZK of the Taxation Administration Act 1953 (Cth) then it is likely that evidence will be required about the underlying transactions, and a statement should be provided in advance of the hearing, with the witness available for cross-examination at the hearing;
(j) when the Tribunal raised this absence of statements with Mr Walt he appeared surprised and said he could obtain a statement from Mr Parr and from Ms Morgan, although he was not sure how long that might take - Mr Walt suggested a month but he did not know about Ms Morgan's other commitments; and
(k) the Tribunal decided not to grant a further adjournment to permit Mr Walt to gather such evidence as he was unable to confidently say when it would be available.
34 The Tribunal concluded:
… At a minimum, I would have expected Mr Walt to come to the reinstatement hearing prepared to address obvious concerns about the merits of the case. It was not apparent that he understood the challenge his client faced in discharging the burden of proof.
My concerns about the state of Mr Parr's case and the uncertainty over his prospects of success weigh heavily against the exercise of the discretion to reinstate. I am conscious that Mr Parr will be deprived of the opportunity to contest the Commissioner's decisions, which will presumably have serious financial implications for him and his family, but he has already been extended ample opportunities to present his case. The Commissioner has already been put to significant expense and delay in these proceedings as the Tribunal has endeavoured to accommodate the applicant's (admittedly difficult) circumstances. It would be unfair to require the Commissioner to expend further resources where the applicant's prospects are, at best, unclear.
Appeal to this Court
35 Pursuant to s 44(2A) of the AAT Act, Mr Parr was required to institute an appeal from the Tribunal's decision to the Federal Court within 28 days of the date on which the decision was provided to him. Appeal proceedings under s 44 of the AAT Act lie in the original jurisdiction of this Court.
36 On 6 August 2021, pursuant to r 33.13 of the Federal Court Rules 2011 (Cth), Mr Parr filed an application for an extension of time within which to institute an appeal against the Tribunal's decision, and provided a proposed notice of appeal. It is not necessary to set out the grounds included in that notice.
37 On 4 November 2021 Kings Park Legal formally commenced acting for Mr Parr in this application instead of Cooper Webb Lawyers. Prior to the hearing Kings Park Legal prepared a proposed amended notice of appeal. The Commissioner did not oppose reliance on the amended notice of appeal for the purpose of this application.
38 The proposed amended notice of appeal relevantly provides as follows:
Questions of law
1. Was the Applicant denied procedural fairness by the Tribunal's decision not to grant an adjournment of the hearing of the application for reinstatement.
2. Was the Applicant denied procedural fairness as a result of the incompetence of the Applicant's counsel.
3. Whether the learned Deputy President failed to consider a relevant consideration in determining that the Applicant's case did not have reasonable prospects of success.
Grounds relied on
1. The Tribunal erred in law by not granting an adjournment of the hearing of the application for reinstatement to permit the Applicant to file further evidence in support of the merits of the Applicant's case.
2. The Tribunal erred in law by proceeding to determine the Applicant's application for reinstatement in circumstances where the Applicant's counsel was incompetent.
3. The Tribunal erred in law in failing to take into consideration the available evidence in the T-documents when finding that the Applicant's case did not have reasonable prospects of success.
39 Rule 33.13 of the Federal Court Rules sets out the procedural requirements for an application for an extension of time under s 44(2A) of the AAT Act in which to appeal a decision of the Tribunal.
40 The principles relating to the exercise of discretion to extend time are well settled. The relevant factors were collected by Wilcox J in Hunter Valley Development Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349 and have been cited on numerous occasions. Matters to be weighed include: the statutory prescribed period and whether the Court is positively satisfied that it is proper to extend that period; the length of the delay; any explanation for the delay; any action the applicant has taken apart from the proceedings and whether the contest of the finality of the decision has remained in issue; prejudice to the respective parties if an extension is or is not granted, including any prejudice in defending the proceedings occasioned by the delay; the nature of the decision and, in that context, relevant public interest considerations including the need for finality in litigation; and the merits of the substantive application. These considerations are not exhaustive. Hunter Valley concerned those principles in the context of an application for an extension of time under the Administrative Decisions (Judicial Review) Act 1977 (Cth). However, they have been applied to applications under s 44 of the AAT Act: Peczalski v Comcare  FCA 366 at ; and Franich v Secretary, Department of Families, Housing Community Services and Indigenous Affairs  FCA 1362 at .
41 It is inappropriate for the purpose of an extension application to fully investigate the merits, although an obvious strength or weakness in the applicant's case is a factor for or against the exercise of the discretion: Guo v Minister for Immigration and Border Protection  FCAFC 34 at ; and Mentink v Minister for Home Affairs  FCAFC 113 at - (Griffiths J, Edmonds J agreeing). If it appears from an examination on a reasonably impressionistic basis that the proposed application has no realistic prospect of success, it would not ordinarily be in the interests of justice to grant an extension of time.
42 The Commissioner relevantly contended that the application should be refused because any substantive appeal lacks merit, as Mr Parr was granted ample opportunities to present his case over the course of events and so was not denied procedural fairness. The Commissioner submitted that 'in the absence of any materials or documentary evidence having been filed, the only conclusion that can be drawn is that the Applicant cannot discharge his onus in relation to the substantive proceeding'. The Commissioner also submitted that Mr Parr should have provided all materials to this Court that he would otherwise rely upon in meeting his burden so that the question of merits could be addressed.
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 ).
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  FCA 1855 at -. 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.
53 Although the delay having regard to the date of the first proposed notice of appeal was only two days, I will extend the time for filing the notice of appeal to 11 March 2022, so that Mr Parr may rely on the proposed notice of appeal annexed to the affidavit of Mr Poli filed on that date as the notice of appeal going forward.