Federal Court of Australia

Tax Practitioners Board v Hinckfuss (No 2) [2026] FCA 529

ORDERS

THE COURT DECLARES THAT:

1.    Upon the admissions which the Respondent, Benjamin Charles Hinckfuss, is taken to have made consequent upon his non-compliance with orders of the Court dated 27 February 2026, it is declared that.

(a)    The Respondent contravened s 50-5(1) of the Tax Agent Services Act 2009 (Cth) (TAS Act) on 11 separate occasions, by providing a tax agent service (other than a BAS service), including the preparation and lodgement of income tax returns and amendments to income tax returns for taxpayers, for a fee while not registered to provide those services.

(b)    The Respondent contravened s 50-5(2) of the TAS Act on one occasion, by providing a BAS service, including the preparation and lodgement of business activity statements for a taxpayer, for a fee while not registered to provide those services.

(c)    The Respondent contravened s 50-10(1) of the TAS Act on one occasion, by advertising the provision of a tax agent service while not registered to provide those services.

THE COURT ORDERS THAT:

1.    Pursuant to s 70-5(1) of the TAS Act, the Respondent be permanently restrained from providing any tax agent service (as defined in s 90-5 of the TAS Act) for a fee or other reward, whilst not a registered tax agent, within the meaning of that term under the TAS Act.

2.    Pursuant to s 70-5(1) of the TAS Act, the Respondent be permanently restrained from advertising for the provision of a tax agent service (as defined in s 90-5 of the TAS Act) for a fee or other reward, whilst not a registered tax agent, within the meaning of that term under the TAS Act.

3.    By 4pm on 28 May 2026, the Applicant file and serve any written submissions (limited to 15 pages), any further affidavits and an electronic bundle of authorities (with a hyper-linked index) on which it intends to rely in respect of any pecuniary penalties sought to be imposed on the Respondent.

4.    By 4pm on 25 June 2026, the Respondent file and serve any written submissions (limited to 15 pages), any further affidavits and an electronic bundle of authorities (with a hyper-linked index) on which he intends to rely in respect of any pecuniary penalties sought to be imposed on the Respondent.

5.    By 4pm on 9 July 2026, the Applicant file and serve any written submission in reply (limited to 5 pages).

6.    The matter be listed for case management at 9.30am on 15 July 2026.

7.    By 4pm 5 May 2026, the Applicant serve a copy of these Orders dated 30 April 2026, together with a copy of the reasons for judgment (Tax Practitioners Board v Hinckfuss [2026] FCA 529) in accordance with Order 6 made on 20 June 2025.

8.    Costs reserved.

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

REASONS FOR JUDGMENT

WHEATLEY J:

INTRODUCTORY OVERVIEW

1    The Tax Practitioners Board (the Board) has brought proceedings against Mr Benjamin Charles Hinckfuss, the Respondent, in relation to alleged contraventions of the Tax Agent Services Act 2009 (Cth) (the Act). The Board alleges contraventions by Mr Hinckfuss for providing tax agent services, including the preparation and lodgement of income tax returns, amendments to income tax returns and the preparation and lodgement of a business activity statement (BAS) each for a taxpayer, for a fee while not registered to provide such services. The Board also alleges that Mr Hinckfuss did advertise the provision of such a tax agent service, also while not registered. By way of final relief against Mr Hinckfuss, the Board seeks declarations, pecuniary penalties and permanent injunctions, although it seeks a separate hearing for the imposition of any pecuniary penalties.

2    Orders for substituted service of the proceedings on Mr Hinckfuss were made on 20 June 2025: Tax Practitioners Board v Hinckfuss [2025] FCA 823 (Substituted Service Judgment).

3    Mr Hinckfuss has been ordered to file a notice of address for service and a concise statement in response, neither of which he has done.

4    The Board now brings an application for default judgment: r 5.23(2)(c) of the Federal Court Rules 2011 (Cth) (the Rules). The Board relies on the default by Mr Hinckfuss to comply with the previous orders of the Court to enliven the discretionary power to give default judgment. The Board submits that this is an appropriate case in which to give default judgment.

5    For the reasons which follow, default judgment is given against Mr Hinckfuss.

WHAT ARE THE APPLICABLE PRINCIPLES – DEFAULT JUDGMENT?

6    Rule 5.23 of the Rules provides that the Court may make certain orders where a party is in default. Where a respondent is in default, an applicant may apply to the Court for certain orders, including an order giving judgment against the respondent for the relief claimed: see r 5.23(2)(c) of the Rules. A party is relevantly in default if they fail to comply with an order of the Court, attend a hearing or to prosecute proceedings with due diligence: see rr 5.22(b), (c) and (d) of the Rules. The power given by this rule is conditioned on only one circumstance, that there has been a failure of the other party to comply relevantly with an order of the Court.

7    There is no requirement that the default:

(a)    be intentional or contumelious; or

(b)    cause or be in circumstances of inordinate and inexcusable delay; or

(c)    cause prejudice to the respondent:

see Monks v Pieman Resources Pty Ltd [2025] FCAFC 121 at [45] (Halley, Meagher and Wheatley JJ), with reference to Wilcox and Gummow JJ in Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388; [1990] FCA 745 at 395.

8    However, matters of delay, prejudice and the respondent’s conduct in the proceedings are usually important factors in weighing the discretion. The discretion conferred by r 5.23 is unconfined, except that a party must be in default: see Professional Administration Service Centres Pty Limited v Commissioner of Taxation (2012) 295 ALR 52; [2012] FCAFC 180 at [35] (Edmonds, McKerracher and Nicholas JJ).

9    As was observed by the Full Court in Service Centres at [38], the scope of this rule was not intended to convey an impression that any failure to comply with a procedural direction will appropriately result in judgment or dismissal of the proceeding. On the contrary, the Rules must be administered sensibly and with an appreciation of the fact that some delays are unavoidable and unpredictable. Even the most conscientious parties and their lawyers can encounter some delay. However, it is not possible or desirable to attempt any exhaustive statement of the particular circumstances under which the power will be appropriately exercised.

10    The Full Court in Service Centres at [39] observed that in Lenijamar two situations were identified where the use of the power will generally be warranted: first, where a history of non-compliance indicates an inability or unwillingness to cooperate with the Court and the other party in having the matter ready for trial within an acceptable period. Second, where there is significant continuing default giving rise to undue prejudice and expense to the other party.

11    From the relevant authorities, Burley J in EV20 Consulting Group Pty Ltd v Paperless Warehousing Pty Ltd [2025] FCA 328 at [14] has recently summarised the principles as follows:

The principles relevant to the exercise of discretion under FCR r 5.23 may be summarised as follows:

(1)    the power invoked by the Applicants is discretionary, it should be exercised cautiously;

(2)    the discretion to enter a default judgment is enlivened when an applicant or cross-claimant applies to the Court for such an order and where a respondent is in default;

(3)    the rule must be administered sensibly and with an appreciation both of the fact that some delays are unavoidable, and unpredictable, by even the most conscientious parties and their lawyers, and of the likely serious consequences to an applicant of staying or dismissing a claim;

(4)    cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to cooperate with the Court and the other party or parties in having the matter ready for trial within an acceptable period provide an example where the exercise of the discretion may be appropriate;

(5)    the requirement imposed by FCR r 5.23 is not that an applicant prove by way of evidence the claim sought to be advanced; the requirement is that the Court needs to be satisfied on the face of the statement of claim that the applicant is entitled to the relief claimed. In this regard, FCR r 5.23 will be met upon the Court being satisfied that relief could be granted on the face of the pleading;

(6)    in addition to the facts alleged in the statement of claim, the Court may permit recourse to further limited evidence but may not admit evidence that would alter the case as pleaded;

see Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227 at [20]–[25] (Flick J); Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606 at [13]–[14] (Yates J); Secretary, Department of Health v Evolution Supplements Australia Pty Ltd [2021] FCA 74 at [10]–[15] (Burley J); Hugo Boss AG v Hardge [2024] FCA 1325 at [20] (Neskovcin J).

What are the issues to be determined?

12    The issues to be determined on this default judgment application are:

(1)    whether Mr Hinckfuss is in default such as to enliven the discretion of the Court for default judgment under r 5.23 of the Rules; and

(2)    if the discretion is enlivened, should the discretion be exercised to order default judgment, in the terms sought by the Board, in whole or in part, either immediately or on any other specified condition.

IS Mr hinckfuss in default?

13    The Board relies on the following and submits that Mr Hinckfuss is in default.

14    The Board commenced these proceedings on 31 October 2024. The Board had difficulties personally serving Mr Hinckfuss, which caused it to bring an application for substituted service.

15    On 20 June 2025, orders were made on that substituted service application which provided for several different methods of serving Mr Hinckfuss with the proceedings: Substituted Service Judgment. In addition to those orders, Order 5 required Mr Hinckfuss to file a notice of address for service within 28 days of the deemed service taking place.

16    A notice of address for service is important. It provides the Court and the Board with an address of a place within Australia at which documents in the proceedings may, during ordinary business hours, be left for that party and to which documents can be posted, as well as an email address for the party: see rr 2.16(1)(d), 5.02 and 11.01 of the Rules.

17    The Board relies on the evidence of an Australian Government Solicitor (AGS) lawyer, Ms Pryde, which I accept, to establish that service of the Originating Application and the accompanying Concise Statement (Originating Documents) were served, as far as was possible, in accordance with the substituted service orders of 20 June 2025. The evidence establishes that two of the methods of service required to be performed (being by way of a certain Facebook account and a particular Gmail email address) were not able to be performed as those accounts did not then exist. However, the substituted service orders provided for service by way of 3 email addresses, by sending private messages to 3 separate phone numbers and by way of 3 private messages to social media accounts. As such, although two methods may not have been successful, I am satisfied the alternate methods of service would have brought the documents to Mr Hinckfuss’s attention. Also served, by the successful means, was a copy of the Orders of 20 June 2025, which required Mr Hinckfuss to file the notice of address for service.

18    Mr Hinckfuss has not filed any notice of address for service in these proceedings. That is a default in terms of r 5.22(b) of the Rules.

19    The Board’s application for default judgment was initially set for hearing on 27 February 2026. The Board has also established service of the default judgment application and affidavit in support, by way of sending those documents to the three email addresses, in Orders 2.1-2.3 of the Orders dated 20 June 2025. This was in accordance with Order 6 of the Orders of 20 June 2025. At that initial hearing an issue was raised regarding the proper approach, given the Board’s Originating Application was accompanied by a concise statement, rather than a statement of claim. As such, it was appropriate to adjourn the hearing and make further orders, which included requiring Mr Hinckfuss to file and serve a concise statement in response to the Board’s concise statement. Orders were also made for service to be effected (as has been done previously in these proceedings) in accordance with Order 2 of the Orders dated 20 June 2025.

20    The Board relies on the evidence of an AGS lawyer, Ms Paolucci, which I accept, to establish that service of the Court’s Orders dated 27 February 2026, together with a further copy of the concise statement has been undertaken. The evidence establishes that two of the methods of service required to be performed (being by way of the same Facebook account and in relation to an Instagram account) were not able to be performed as the accounts did not exist. Again, although two methods may not have been successful, I am satisfied the alternate methods of service would have bought the documents to Mr Hinckfuss’s attention.

21    Mr Hinckfuss was required, by the Orders of 27 February 2026, to file and serve his concise statement in response by 4pm on 27 March 2026. Mr Hinckfuss has not filed any concise statement in response in these proceedings. That is a default in terms of r 5.22(b) of the Rules.

22    Mr Hinckfuss also did not attend the hearing of the default judgment application, on either occasion. Furthermore, Mr Hinckfuss has not appeared in Court or otherwise attended Court on any occasion when the matter has been before the Court. A party or the party’s lawyer must attend any hearing in a proceeding: r 5.01 of the Rules. This is also a default in accordance with r 5.22(c) of the Rules.

23    Finally, all of these matters taken together also supports a finding that Mr Hinckfuss is not defending the proceeding with due diligence: r 5.22(d) of the Rules.

24    On any of these bases (separately or taken together), Mr Hinckfuss, the Respondent, is in default for the purposes of Division 5.2 and more specifically r 5.22 of the Rules.

25    As such, the discretion under r 5.23 is enlivened.

Should judgment be entered for the board?

26    The discretion is unconfined, except that the party must be in default: see Service Centres at [35]. The Board has established that Mr Hinckfuss is in default. It is not sufficient or appropriate for any failure to comply with a procedural direction to then dismiss the proceedings or award judgment because of that default. Some delays are unavoidable despite best endeavours: see Service Centres at [38]. However, the delay and the complete failure of Mr Hinckfuss to engage with these proceedings supports the inference that he does not intend to defend the proceedings with due diligence.

27    The nature of a concise statement is different to that of a traditional form of pleading, by way of a statement of claim. This is explained in the Central Practice Note: National Court Framework and Case Management (CPN-1) dated 7 February 2025 at [6.8]-[6.10]. A concise statement is not intended to be a substitute for a traditional pleading. The concise statement is to bring to the attention of the respondent and the Court the key issues and the key facts: also see Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2021) 287 FCR 388; [2021] FCAFC 121 where at [140]-[154], McKerracher and Colvin JJ explained the nature and purpose of a concise statement.

28    This is important because the Rules provide for certain consequences, in relation to traditional pleadings. A failure to file a defence will amount to the allegations in the statement of claim not being specifically denied, which means they are taken to be admitted (r 16.07(2) of the Rules). There is no equivalent rule applicable to a concise statement in response. Furthermore, the Rules expressly provide (r 16.01A, subject to an exception which is not relevant in this context, see r 16.13) that Division 16.1, which includes r 16.07, does not apply to an alternative accompanying document referred to in r 8.05, which would include a concise statement: also see Chadwick v State of New South Wales (No 4) [2024] FCA 651 at [35] (Kennett J); Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonia Holdings Pty Ltd (No 3) (2025) 311 FCR 588; [2025] FCA 661 at [13].

29    Perram J held in Australasian Performing Right Association Ltd v Telstra Corporation Limited (2019) 369 ALR 529; [2019] FCA 751 at [18] that a failure by a respondent to appear did not procedurally permit the Court to proceed on the basis that matters in the concise statement had been admitted. This is different if the matter had of progressed by way of traditional pleadings.

30    Derrington J in Wight, in the matter of I-Prosperity Pty Ltd (in liq) v LZYH Investments Pty Limited [2022] FCA 209 (at [6]) applied the observations of Yates J in Chamberlain Group, Inc v Giant Alarm System Co Ltd (No 2) [2019] FCA 1606 at [13]-[14]. The Chamberlain Group matter involved a traditional pleading by way of a statement of claim, whereas the LZYH Investments matter involved a concise statement. Derrington J proceeded on the basis that the failure to respond to the allegations in the plaintiffs’ concise statement had the consequence that those matters were not in issue and could be accepted for the purposes of that application: LZYH Investments at [8]. A similar approach was adopted in Australian Communication and Media Authority v Jones [2023] FCA 246 at [54]-[55] (Thomas J).

31    In the circumstances of this case, Mr Hinckfuss was ordered to provide a concise statement in response. He did not do so. That failure constitutes a default under r 5.22(b), which enlivens the discretion to grant default judgment. Although the default of Mr Hinckfuss to file a notice of address for service is also a default for the purposes of r 5.22, I agree with Perram J in Australasian Performing Right Association (at [20]), such a default would not permit the Court to proceed on the basis that the allegations in the concise statement are taken to be admitted.

32    The Rules permit an applicant to commence proceedings by an originating application being accompanied by an alternative accompanying document, which would include a concise statement. The Rules do not then require a respondent to file a concise statement in response, either within a particular timeframe or for any consequences of not filing a concise statement in response. However, it is different when the Court orders that a concise statement in response be filed within a particular timeframe. When ordered to provide a concise statement in response, the Court is requiring that party to specifically respond (consistent with the nature of a concise statement) to the allegations in the concise statement.

33    Where a concise statement in response is not provided in accordance with an Order of the Court, that permits the Court to proceed on the basis that the allegations in the concise statement are not specifically denied and can be accepted for the purposes of a default judgment application: s 37P of the Federal Court of Australia Act 1976 (Cth) (FCA). This default, of failing to comply with an Order of the Court and not filing the concise statement in response, operates in two ways. First, as a default under r 5.22, enlivening the Court’s discretion under r 5.23 and second, it also, separately acts in a similar way to r 16.07(2) of the Rules. This is because that party is required (by Court Order) to provide a specific response to the allegations in the concise statement, by way of a concise statement in response. By failing to provide a concise statement in response, the respondent has not specifically denied those allegations. If it did not operate in this way, a respondent when ordered to provide a concise statement in response could ignore that requirement and effectively demand that an applicant file a traditional pleading (statement of claim) so as to be able to rely on r 16.07(2) of the Rules. Although a concise statement and a traditional pleading, by way of a statement of claim, are different as a matter of characterisation, as a matter of principle each is to bring to a respondent’s attention relevant facts in issue for the purposes of the proceedings. One of the purposes behind a concise statement as explained in Delor Vue (at [146]-[147]) is to limit tactical and technical disputation and to have the proceedings conducted in a manner consistent with the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: s 37M of the FCA. Enabling a respondent to avoid the consequential admissions by merely not providing that responsive document, when ordered to do so, is contrary to the purpose of a concise statement and the overarching purpose of the civil practice and procedure provisions, particularly in s 37M of the FCA. This approach is consistent with that taken in LZYH Investments and Jones.

34    However, default judgment will not necessarily be entered where there has been a failure to file a concise statement in response, as ordered. It remains a matter of discretion and one which is not exercised lightly. Further, the Court must be satisfied that the applicant is entitled to the relief claimed against the respondent, as sought in that concise statement. This will require a consideration of the matters alleged in the concise statement. Even in circumstances of admissions, given the nature of a concise statement, the entitlement to relief, on that document alone, may not be established. A concise statement is not necessarily a comprehensive statement of all matters that must be established in order for the relief sought to be granted, it serves a broader function of providing fair disclosure of the case to be advanced, with more precise issues potentially being disclosed by other means: Delor Vue at [144]. Although a concise statement may not be comprehensive it should not be expressed vaguely, imprecisely or contain extraneous matters: Delor Vue at [153]. Whether a particular concise statement will contain all necessary matters, even taking such matters as being admitted, to entitle an applicant to the relief sought, will depend on the particular case advanced and the elements that must be established.

35    Therefore, it is necessary to consider the Board’s concise statement in the circumstances of this case and assess whether it satisfies these requirements of what needs to be established to entitle the Board to the relief it claims.

36    Given the nature of the Board’s case, it is necessary to first consider the legislative context.

Legislative Context

37    The object of the Act is contained in s 2-5 as follows:

2-5 Object

(1)    The object of this Act is to support public trust and confidence in the integrity of the tax profession and of the tax system by ensuring that *tax agent services are provided to the community in accordance with appropriate standards of professional and ethical conduct.

(2)    This is to be achieved by (among other things) providing for:

(a)    the registration and regulation, by a national Board, of entities that provide *tax agent services; and

(b)    a *Code of Professional Conduct for *registered tax agents and BAS agents; and

(c)    sanctions to discipline entities in relation to their conduct as a *registered tax agent or BAS agent; and

(d)    sanctions where tax agent services are provided otherwise than in accordance with this Act.

38    Hespe J in Tax Practitioners Board v Buckland (Interim Injunction) [2023] FCA 836 described the object at [10] as:

The object of the TAS Act is to ensure that tax agent services are provided to the public in accordance with appropriate standards of professional and ethical conduct: TAS Act section 2-5.

39    Section 2-10 provides the general guide to each part and relevantly provides in s 2-10(1) that a person needs to be registered to provide what are defined as a “tax agent service” for a fee or to engage in other conduct connected with providing such services. Part 2 sets out the requirements for registration.

40    Further, s 2-10(5) provides that:

(5)    Part 6 establishes the Board and sets out the Board’s functions and powers. The Board may investigate breaches of the Act and has certain reporting obligations.

41    Section 1-15 provides that the Board, being the Tax Practitioners Board (s 90-1) established by s 60-5 has the general administration of the Act. The functions of the Board are provided for in s 60-15 which relevantly includes:

60-15 Functions

The functions of the Board are:

(a)    to administer the system for the registration of *registered tax agents and BAS agents, and:

(b)    to investigate:

(i)    applications for registration; and

(ii)    conduct that may breach this Act; and

(c)    to impose sanctions for non-compliance with the *Code of Professional Conduct; and

(d)    to issue, by legislative instrument, guidelines to assist in achieving the functions mentioned in paragraphs (a), (b) and (c); and

(e)    such other functions as are conferred on the Board by this Act, the regulations or any other law of the Commonwealth; and

(f)    to do anything incidental or conducive to the performance of its functions.

42    Section 90-5 of the Act provides for the meaning of tax agent service as follows:

90-5 Meaning of tax agent service

(1)    A tax agent service is any service:

(a)    that relates to:

(i)    ascertaining liabilities, obligations or entitlements of an entity that arise, or could arise, under a *taxation law; or

(ii)    advising an entity about liabilities, obligations or entitlements of the entity or another entity that arise, or could arise, under a taxation law; or

(iii)    representing an entity in their dealings with the Commissioner; and

(b)    that is provided in circumstances where the entity can reasonably be expected to rely on the service for either or both of the following purposes:

(i)    to satisfy liabilities or obligations that arise, or could arise, under a taxation law;

(ii)    to claim entitlements that arise, or could arise, under a taxation law.

(2)    A service specified in the regulations for the purposes of this subsection is not a tax agent service.

Note:    For specification by class, see subsection 13(3) of the Legislation Act 2003.

43    Further, s 50-5 provides the following in relation to providing a tax agent service if registered:

50-5 Providing tax agent services if unregistered

(1)    You contravene this subsection if:

(a)    you provide a service that you know, or ought reasonably to know, is a *tax agent service; and

(b)    the tax agent service is not a *BAS service or a *tax (financial) advice service; and

(c)    you charge or receive a fee or other reward for providing the tax agent service; and

(d)    you are not a *registered tax agent; and

(e)    if you provide the tax agent service as a legal service—either:

(i)    you are prohibited, under a *State law or *Territory law that regulates legal practice and the provision of legal services, from providing that tax agent service; or

(ii)    subject to subsection (3), the service consists of preparing, or lodging, a return or a statement in the nature of a return.

Civil penalty:

(a)    for an individual—250 penalty units; and

(b)    for a body corporate—1,250 penalty units.

Note    Subdivision 50-C of this Act and Subdivision 298-B of Schedule 1 to the Taxation Administration Act 1953 determine the procedure for obtaining a civil penalty order against you.

(2)    You contravene this subsection if:

(a)    you provide a service that you know, or ought reasonably to know, is a *BAS service; and

(b)    you charge or receive a fee or other reward for providing the BAS service; and

(c)    you are not a *registered tax agent or BAS agent; and

(d)    if you provide the BAS service as a legal service—either:

(i)    you are prohibited, under a *State law or *Territory law that regulates legal practice and the provision of legal services, from providing that BAS service; or

(ii)    subject to subsection (4), the service consists of preparing, or lodging, a return or a statement in the nature of a return; and

(e)    if the BAS service relates to imports or exports to which an *indirect tax law applies—you are not a customs broker licensed under Part XI of the Customs Act 1901.

Civil penalty:

(a)    for an individual—250 penalty units; and

(b)    for a body corporate—1,250 penalty units.

Note:    Subdivision 50-C of this Act and Subdivision 298-B of Schedule 1 to the Taxation Administration Act 1953 determine the procedure for obtaining a civil penalty order against you.

(3)    Subparagraph (1)(e)(ii) does not apply if you provide the *tax agent service as a legal service in the course of acting for a trust or deceased estate as trustee or *legal personal representative.

(4)    Subparagraph (2)(d)(ii) does not apply if you provide the *BAS service as a legal service in the course of acting for a trust or deceased estate as trustee or *legal personal representative.

(5)    If you wish to rely on subsection (3) or (4) in civil penalty proceedings, you bear an *evidential burden in relation to that matter.

44    Further, s 50-10(1) relevantly provides the following in relation to advertising to provide a tax agent service, if unregistered:

50-10    Advertising tax agent services if unregistered

(1)     You contravene this subsection if:

(a)    you advertise that you will provide a *tax agent service; and

(b)    the tax agent service is not a *BAS service or a *tax (financial) advice service; and

(c)    you are not a *registered tax agent; and

(d)    if the tax agent service would be provided as a legal service—either:

(i)    you are prohibited, under a *State law or *Territory law that regulates legal practice and the provision of legal services, from providing that tax agent service; or

(ii)    subject to subsection (3), the service would consist of preparing, or lodging, a return or a statement in the nature of a return; and

(e)    if the tax agent service would be provided on a voluntary basis—you would not provide the service under a scheme that the Commissioner has, by notifiable instrument, approved for the purposes of this paragraph.

Civil penalty:

(a)    for an individual—50 penalty units; and

(b)    for a body corporate—250 penalty units.

Note:    Subdivision 50-C of this Act and Subdivision 298-B of Schedule 1 to the Taxation Administration Act 1953 determine the procedure for obtaining a civil penalty order against you.

45    Hespe J in Buckland at [13] described the preparation and lodgement of income tax returns (as that term is defined in s 995-1 of the Income Tax Assessment Act 1997 (Cth)) as a quintessential tax agent service, which is also consistent with the language in s 50-5(1)(e)(ii) of the Act. That section of the Act refers to a service consisting of preparing, or lodging, a return or a statement in the nature of a return. In this regard, also see the observations of Rares J in Tax Practitioners Board v Shanahan [2013] FCA 764 at [9]-[10].

46    Further to this legislative context should be added s 70-5 which provides:

Injunction to restrain or require certain conduct

(1)    If, on the application of the Board, the *Federal Court is satisfied that you have engaged, or are proposing to engage, in conduct that would constitute a contravention of a civil penalty provision, the Federal Court may grant an injunction:

(a)    restraining you from engaging in the conduct; or

(b)    if in the Federal Court's opinion it is desirable to do so, requiring you to do something.

(2)    Before deciding the application, the *Federal Court may grant an interim injunction:

(a)    restraining you from engaging in conduct; or

(b)    requiring you to do something.

The Board’s Concise Statement

47    Broadly, the Board seeks relief against Mr Hinckfuss, in two forms. First, by way of declarations that he contravened the Act by:

(a)    providing tax agent services (other than BAS services) for a fee while not registered (see s 50-5(1) of the Act);

(b)    on one occasion, he did provide a BAS service for a fee while not registered (see s 50-5(2) of the Act); and

(c)    on one occasion, he did advertise for the provision of tax agent services while not registered (see s 50-10(1) of the Act).

48    Second, by way of a permanent injunction (see s 70-5(1) of the Act) that he be prohibited from providing tax agent services, including the preparation and lodging of income tax returns, amendments to income tax returns and business activity statements for taxpayers for a fee or other rewards, whilst not registered as a tax agent under the Act and be prohibited from advertising for the provision of tax agent service while not registered.

49    For the Court to be satisfied that the Board is entitled to the relief claimed, it is necessary to consider the elements of s 50-5(1) and (2), in relation to a tax agent service and a BAS service, which are as follows (see, similarly, Buckland at [20]):

(1)    Mr Hinckfuss provided a service which was a tax agent service (s 50-5(1)) or a BAS service (s 50-5(2));

(2)    Mr Hinckfuss knew, or ought reasonably to have known, the service provided was a tax agent service or a BAS service;

(3)    Mr Hinckfuss charged or received a fee or other reward for providing the tax agent service or the BAS service; and

(4)    Mr Hinckfuss was not a registered tax agent.

50    For the Court to be satisfied that the Board is entitled to the relief claimed in relation to the allegations concerning advertising of a tax agent service, it is necessary to consider the elements of s 50-10(1), which are as follows:

(1)    Mr Hinckfuss did advertise that he will provide a tax agent service (s 50-10(1)(a)), which is not a BAS service (s 50-10(1)(b)); and

(2)    Mr Hinckfuss was not a registered tax agent (s 50-10(1)(c)); and

(3)    The service advertised by Mr Hinckfuss was not a legal service and was not to be provided on a voluntary basis (s 50-10(1)(d) and (e)).

51    The Board does not need to prove its entitlement to relief by way of evidence. It will be sufficient if the matters alleged in the concise statement, which will be taken to be admitted for the purposes of this application, satisfy the necessary statutory elements of the Act. That is, the Court need only be satisfied that the Board is entitled to relief on the face of the matters alleged in the concise statement: see Chamberlain Group at [13]-[14]; Tax Practitioners Board v Van Stroe [2022] FCA 482 at [43]-[45] (Banks-Smith J). This was also the process undertaken in LZYH Investments from [9]-[24].

Has the provision of a Tax Agent Service been established?

52    The necessary four elements are set out at [48] above.

53    First, the Board relevantly alleges that Mr Hinckfuss assisted 11 identified clients to prepare and lodge their income tax returns or amended income tax returns, for specific identified income years, which is a tax agent service, within the meaning of that term provided under s 90-5 of the Act: see the Board’s concise statement at [3.1], [6], [7] and [9].

54    Second, the Board also alleges that Mr Hinckfuss knew or ought reasonably to have known that in assisting the clients with the preparation of income tax returns and amended income tax returns, he was providing a tax agent service, within the meaning of that term provided in s 90-5 of the Act: see the Board’s concise statement at [10].

55    Third, for assisting the identified clients with the preparation and lodgement of income tax returns and amended income tax returns Mr Hinckfuss charged the clients a fee, which they either paid or were asked to pay into an associated entity’s bank account: see the Board’s concise statement at [8]. The terms of s 50-5(1)(c) require that he “charge or receive a fee” or “other reward…”, for providing the tax agent service. Therefore, the allegation that Mr Hickfuss charged the clients a fee would be sufficient to satisfy this element. Further, if necessary, even if the clients paid the fee charged to the bank account of an associated entity that would fit within the terms of the section by being an “other reward for providing the tax agent service”; a narrow construction of the provision would be inconsistent with the protective purpose of the Act: Tax Practitioners Board v Hacker [2020] FCA 1047 at [108] (Rangiah J); Tax Practitioners Board v Ke [2026] FCA 221 at [43]-[46].

56    Fourth, the Board alleges that Mr Hinckfuss was not registered in accordance with the Act to provide a tax agent service: see the Board’s concise statement at [5].

57    Therefore, on the face of the matters alleged in the Board’s concise statement, which are taken to be admitted on this application, the Board is entitled to the relief claimed for the contraventions of the Act by Mr Hinckfuss providing tax agent services, which he knew or ought to have known were such services, for the 11 clients, for a fee or reward, whilst not a registered tax agent.

Has the provision of a BAS service been established?

58    The necessary four elements are set out at [48] above.

59    First, the Board relevantly alleges that Mr Hinckfuss assisted one of 11 identified clients to prepare and lodge their BAS for the months ending 31 March, 30 June, 30 September and 31 December 2021. These services were a BAS service within the meaning of that term provided under s 90-10 of the Act: see the Board’s concise statement at [11], [12] and [14].

60    Second, the Board also alleges that Mr Hinckfuss knew or ought reasonably to have known that in assisting this client with the preparation of their BAS, he was providing a BAS service, within the meaning of that term provided in s 90-10 of the Act: see the Board’s concise statement at [15].

61    Third, for assisting the identified client with the preparation and lodgement of their BAS Mr Hinckfuss charged the client a fee, which they either paid or were asked to pay into an associated entity’s bank account: see the Board’s concise statement at [13]. The terms of s 50-5(2)(b) requires that he “charge or receive a fee” or “other reward…”, for providing the BAS service. Therefore, the allegation that Mr Hickfuss charged the client a fee would be sufficient to satisfy this element. Further, if necessary, even if the client paid the fee charged to the bank account of an associated entity that would fit within the terms of the section by being an “other reward for providing the BAS service” a narrow construction of the provision would be inconsistent with the protective purpose of the Act: Hacker at [108]; Ke at [43]-[46].

62    Fourth, the Board alleges that Mr Hinckfuss was not registered in accordance with the Act to provide a BAS service: see the Board’s concise statement at [5].

63    Therefore, on the face of the matters alleged in the Board’s concise statement, which are taken to be admitted on this application, the Board is entitled to the relief claimed for the contraventions of the Act by Mr Hinckfuss providing a BAS service, which he knew or ought to have known was a BAS service, in relation to this client, for a fee or reward, whilst not a registered tax agent.

Has Mr Hinckfuss advertised a Tax Agent Service, whilst not registered?

64    The necessary elements are set out at [49] above.

65    First, the Board relevantly alleges that Mr Hinckfuss authorised for certain content to be placed on the website for “Truckies Tax Accountants” and a Facebook page for “Truckies Tax Accountants”, which offered to the public matters which would be understood as relating to ascertaining and advising about liabilities, obligations or entitlements of an entity that arise or could arise under a taxation law and representing an entity in their dealings with the Commissioner of Taxation. By reason of the particular services offered by way of the publicly accessible website and Facebook page, these services were advertised services (s 50-10(1)): see the Board’s concise statement at [16]-[19].

66    Further, the Board also alleges that the services which were offered were a tax agent service within the meaning of that term provided in s 90-5 of the Act: see the Board’s concise statement at [20]-[21].

67    Second, the Board alleges that at all material times, Mr Hinckfuss was not registered in accordance with the Act to provide a tax agent service: see the Board’s concise statement at [5].

68    Third, the services which were being offered, were not offered to be provided without a fee or other reward or on a voluntary basis: see the Board’s concise statement at [21].

69    Therefore, on the face of the matters alleged in the Board’s concise statement, which are taken to be admitted on this application, the Board is entitled to the relief claimed for the contraventions of the Act by Mr Hinckfuss advertising to provide a tax agent service, whilst not a registered tax agent.

Should the discretion be exercised to grant default judgment?

70    The defaults by Mr Hinckfuss have enlivened the discretion of the Court, to order default judgment. Those defaults are continuing and significant. Further, Mr Hinckfuss, despite being served in accordance with the substituted service orders, has not attended any of the hearings of this matter or filed any of the required documents. Mr Hinckfuss has also not otherwise engaged with these proceedings. By his inaction and history of non-compliance it indicates an inability or unwillingness to cooperate with the Court and the Board to have the matter ready for a trial, within an acceptable period. This also indicates that Mr Hinckfuss does not intend to defend the proceeding with due diligence.

71    The default by Mr Hinckfuss is not simply a matter of delay (some delays are unavoidable), it is a complete lack of participation and involvement in the proceedings. Mr Hinckfuss has offered no explanation for any of the defaults that have occurred by him in the proceedings.

72    Default judgment should not lightly be entered. However, Mr Hinckfuss has not provided a concise statement in response (effectively a defence style of document). In these circumstances, as explained above (at [27]-[34]), the matters in the concise statement will be taken to be admitted. The Court then considers whether the Board would be entitled to the relief it seeks on the face of its concise statement, which is admitted in this application.

73    The form of judgment sought by the Board is by way of declarations that Mr Hinckfuss has contravened the Act and a permanent injunction restraining Mr Hinckfuss from providing tax agent services and BAS services, whilst not registered.

Should a Declaration be made?

74    As Mr Hinckfuss has not provided a concise statement in response, despite being ordered to do so, those allegations made by the Board are taken to be admitted. As is considered above, the allegations made in the Board’s concise statement do establish a proper basis for the relief it seeks. That relief is based on the Board having established that Mr Hinckfuss has contravened the Act, which the Board has done on this application.

75    The Court has a “very wide” discretion to grant declaratory relief under s 21 of the FCA: Australian Competition and Consumer Commission v Oscar Wylee Pty Ltd [2020] FCA 1340 at [85] (Katzmann J). However, despite the width, the declaration must serve a legitimate purpose or be of some utility: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 at 581‑582 (Mason CJ, Dawson, Toohey and Gaudron JJ); Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591; [2000] HCA 11 at [52] (Gaudron J); Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53; [2003] HCA 75 at [95] (Gummow, Hayne and Heydon JJ). The question must be real, not hypothetical, the applicant must have a real interest in raising the matter and there must be a proper contradictor: Van Stroe at [56] and the authorities cited therein.

76    The Board, as the regulator and in accordance with its functions under the Act (s 60-15) is the appropriate party to bring these proceedings for contraventions of the Act. Generally, proceedings brought by a regulatory body seeking declarations relating to contraventions of legislative provisions are likely to be appropriate where they serve to record the Court’s disapproval of the contravening conduct, vindicate a regulator’s claim that the respondent contravened the provisions, assist a regulator to carry out its duties, and deter other persons from contravening the provisions: Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2023] FCA 256 at [51] (O’Bryan J); Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2007] ATPR 42-140; [2006] FCA 1730 at [6] (Nicholson J), and the cases there cited; and Van Stroe at [59].

77    The Board, at the hearing, quite properly accepted that it did not have any evidence of ongoing contravention. However, the Board submitted that in this context of the regulator seeking declaratory relief, there is a public benefit which is served in making such declarations.

78    The proper contradictor is Mr Hinckfuss. He is joined to the proceedings, has an interest in the proceedings and is bound by the result, it matters not that he has not opposed the declaratory relief sought: Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56 at [14] and [30] (Greenwood, Logan and Yates JJ); Fair Work Ombudsman v Al Hilfi [2015] FCA 313 at [23] (Besanko J); Geneva Laboratories Limited v Prestige Premium Deals Pty Ltd (No 4) [2016] FCA 867 at [79]-[82]; Van Stroe at [57].

79    For the reasons given above, it is appropriate in this matter to make the declarations as sought. The Board, as regulator, has brought these proceedings and established it is entitled to the relief claimed. The issues involved are not hypothetical and there is utility in making the declarations. There is a public interest, expressed in the objects of the Act, to support the public trust and confidence in the integrity of the tax profession and the tax system by ensuring that tax agent services and BAS services are provided in accordance with appropriate standards of professional and ethical conduct.

80    As such, there will be declarations made, in the terms sought by the Board.

Should an Injunction be made?

81    Section 70-5(1) of the Act relevantly provides that, on application of the Board, if this Court is satisfied that there has been contravention of a civil penalty provision, an injunction may be granted. Sections 50-5(1) and 50-5(2) are each civil penalty provisions. On the basis of the Board’s concise statement, which is taken to be admitted in these circumstances, I am satisfied that Mr Hinckfuss has engaged in conduct which constitutes a contravention of a civil penalty provision.

82    The Board accepted that there was no evidence of ongoing contraventions. However, it is taken to be admitted that Mr Hinckfuss provided tax agent services to 11 different clients and generally for multiple income years (there are two clients which only relate to one income year). There is also one client for which the tax agent services, by way of amended income tax returns related to five income years. That is, there are multiple events of contraventions relied on by the Board.

83    The Board also relied on the earlier proceedings, Tax Practitioners Board v Hinckfuss [2013] FCA 1168 (Dowsett J) whereby orders regarding the following were made:

(1)    A declaration of contravention of providing tax agent services, for a fee while not registered (s 50-5(1) of the Act), on 25 occasions between certain dates;

(2)    A declaration of contravention of advertising to provide tax agent services (s 50-10(1) of the Act) on 2 separate occasions while not registered;

(3)    Pecuniary penalties for those contraventions were imposed; and

(4)    An injunction for 3 years was imposed, that Mr Hinckfuss had to make certain disclosures to clients (by way of a particular form, which had to be signed by the client).

84    On these bases, there have been multiple occurrences of contraventions of the Act, and this is not the first time Mr Hinckfuss has engaged in such contraventions. Given the repetitive conduct engaged in, both in terms of these contraventions and historically, I am satisfied that a permanent injunction, in the terms sought, is appropriate.

CONCLUSION

85    For the above reasons, this is an appropriate case to grant default judgment to the Board, against Mr Hinckfuss. That judgment will be in the form of declarations being made that Mr Hinckfuss has contravened the Act and a permanent injunction will also be made.

86    The Board sought for a separate hearing to address pecuniary penalties. Separate submissions and issues arise on that and it should be addressed separately. Timetabling orders will be made for that hearing.

87    Costs of the proceeding will be considered together with the pecuniary penalties.

Associate:    

Dated:    30 April 2026