Federal Court of Australia

Tax Practitioners Board v Ke (No 2) [2026] FCA 1657

ORDERS

THE COURT ORDERS THAT:

1.    The Respondent’s Interlocutory Applications dated 22 May 2026, and 1 June 2026 be dismissed.

2.    The Respondent pay the Applicant’s costs of the Respondent’s Interlocutory Applications dated 22 May 2026 and 1 June 2026, to be fixed on a lump sum basis determined by a Registrar in accordance with GPN-Costs, in the absence of agreement.

3.    A pro bono referral certificate be issued by the Registrar to the end of the provision of pro bono legal assistance to the Respondent, Ms Yan Qun Ke.

4.    By 4.30pm on 29 January 2027 the Respondent file and serve any additional affidavits to be relied on at the final hearing.

5.    By 4.30pm on 19 February 2027 the Applicant file and serve any additional affidavits to be relied on at the final hearing.

6.    The matter be listed for hearing on an estimate of 3 days, not before 2 April 2027, on a date to be fixed, in consultation with the parties.

7.    The matter be listed for pre-trial case management at 9.00am on 2 April 2027.

8.    There be liberty to apply, on 3 days written notice.

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 Applicant, the Tax Practitioners Board (the Board), commenced proceedings by way of an Originating Application filed on 30 July 2025 against the Respondent, Ms Ke. It seeks declarations, a permanent injunction and a pecuniary penalty against Ms Ke in relation to alleged contraventions of the Tax Agent Services Act 2009 (Cth) (the TAS Act).

2    On 3 February 2026, an interlocutory injunction was made against Ms Ke: Tax Practitioners Board v Ke [2026] FCA 221.

3    Ms Ke has now brought two Applications effectively seeking a stay until what Ms Ke claims are related criminal proceedings in the District Court in Brisbane, have concluded.

4    Timetabling orders were made for the parties to provide material on these Applications. At the hearing of these Applications, Ms Ke sought to rely on submissions which were lodged at approximately 4.02am on the day of hearing. This was contrary to the timetabling orders, which required those submissions 14 days prior to the hearing. The Board did not oppose those submissions being received and relied upon. As such, leave was granted for Ms Ke to file and rely on those submissions, at the hearing.

5    For the following reasons the Applications for a stay must be dismissed. Further timetabling orders will be made to progress the matter to a final hearing. The parties will be granted liberty to apply, for the matter to be listed for earlier case management, should any of the proposed dates be unworkable.

The RESPONDENT’S APPLICATIONS

6    On 22 May 2026, Ms Ke filed an application seeking the following:

Interlocutory orders sought

1.    That the hearing currently listed on 26 June 2026 be adjourned;

2.    That the Respondent be granted an extension of time to file and serve evidence and submissions;

3.    That the current requirement for the Respondent to file evidence by 2 June 2026 be vacated or extended;

4.    Alternatively, that the proceeding be stayed pending the determination of related criminal proceedings involving the Respondent;

5.     Such further or other orders as the Court considers appropriate.

7    On 1 June 2026, Ms Ke provided a further interlocutory application, which sought:

Interlocutory orders sought

1.    That the proceeding be stayed until further order of the Court.

2.    That the hearing listed for 26 June 2026 be vacated;

3.    That the requirement for the Respondent to file and serve evidence by 2 June 2026 be vacated.

4.    That all procedural deadlines be suspended during the stay.

5.    That the current requirement for the Respondent to file evidence by 2 June 2026 be vacated or extended;

6.     That the proceeding be relisted for directions upon lifting of the stay.

7.     Such further or other orders as the Court considers appropriate.

8    On 8 June 2026, both Applications were set for hearing on a date to be fixed, in consultation with the parties. Orders were made requiring the parties to file and serve any affidavits to be relied on, and submissions, prior to the hearing.

9    Ms Ke seeks a stay of the Board’s proceeding in this Court on two separate bases being (which are described in further detail below):

(1)    District Court Criminal Proceeding; and/or

(2)    Medical/Health Reasons.

RELEVANT PRINCIPLES FOR A STAY

10    The Court’s power to order a stay is an incident of its general power to control its own proceedings: s 23 of the Federal Court of Australia Act 1976 (Cth), Groves v Commissioner of Taxation (2011) 82 ATR 813; [2011] FCA 222 at [22] (Logan J) and Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd (2019) 138 ACSR 42; [2019] FCA 964 (ASIC v ANZ) at [50] (Moshinsky J). The Court has a wide discretion to stay proceedings in the interests of justice.

11    Moshinsky J in ASIC v ANZ helpfully summarised the relevant principles, particularly in circumstances where civil proceedings are sought to be stayed pending criminal proceedings involving similar issues, which I gratefully adopt as follows:

[53]    First, courts have the power to control their proceedings and to order a stay in an appropriate case; it will be appropriate to do so where the interests of justice require such an order: Zhao at [36] per French CJ, Hayne, Kiefel, Bell and Keane JJ; CFMEU v ACCC at [22] per Dowsett, Tracey and Bromberg JJ.

[54]    Secondly, a plaintiff is prima facie entitled to have his, her or its civil action tried in the ordinary course and a stay therefore requires justification on proper grounds (with the applicant for a stay bearing the burden of demonstrating proper grounds): see Zhao at [39]; McMahon v Gould at 206.

[55]    Thirdly, a court will not grant a stay of a civil proceeding merely because related charges have been brought against an accused and criminal proceedings are pending; a stay of the civil proceeding may be warranted if it is apparent that the accused is at risk of prejudice in the conduct of his, her or its defence in the criminal trial: see Zhao at [35]; CFMEU v ACCC at [22]; see also s 1331 of the Corporations Act. The risk of prejudice must be real: see CFMEU v ACCC at [22]; Ransley at [22] per Jagot J. As to possible prejudice to an accused, the following have been recognised as relevant factors:

(a)    prejudice to the accused’s right to silence or privilege against self-incrimination: see Zhao at [42]–[47]; CFMEU v ACCC at [23]; Ransley at [24]–[30]; Obeid at [4]; and

(b)    the possibility of publicity that might reach and influence jurors: see CFMEU v ACCC at [44]–[46].

…

[58]    Fourthly, relevant prejudice to a party in the civil proceeding may arise from the existence of the criminal proceeding even in circumstances where there is not a strict identity between the applicant for the stay of the civil proceeding and the criminal accused: see Ransley at [15]; Obeid at [7]; Re Plutus Payroll at [33], [39], [41]–[43]. There may, for example, be relevant prejudice where the criminal accused, although not a party to the civil proceeding, would be a lay witness in that proceeding. In such circumstances, the criminal accused’s invocation of the privilege against self-incrimination and the right to silence may deprive a party to the civil proceeding of assistance or evidence that is critical or very important to its claim or defence.

[59]    Fifthly, prejudice to an accused who is not a party to the civil proceeding, or against whom relevant allegations are not made in the civil proceeding, may be a relevant consideration: see CFMEU v ACCC at [28]–[49] (although this argument failed on the facts in that case). There was a difference between the parties to the present case on this point. In oral submissions, ASIC submitted that the focus (in an application for a stay of a civil proceeding pending a criminal proceeding) is on the parties to the civil proceeding and whether the existence of the criminal proceeding gives rise to a risk of prejudice to a party; prejudice to a person who is not a party to the civil proceeding is not a relevant consideration. ASIC did not submit that prejudice to a non-party is completely irrelevant; however, on ASIC’s submission, prejudice to a non-party is only relevant to the extent that it impacts on the party to the civil proceeding in a relevant way. In support of these submissions, ASIC relied on Obeid at [2], [4], [6], [7]; McMahon v Gould at 206 (paragraphs (e) and (h)); Zhao at [19], [35], [37], [42], [48]; Ransley at [10], [15]; and Re Plutus Payroll at [33], [37], [41]–[43].

…

[61]    Sixthly, the risk of prejudice identified by an applicant for a stay must be weighed against the prejudice that a stay of the civil proceeding would occasion: see Zhao at [47], [50]; CFMEU v ACCC at [22].

[62]    Seventhly, the principles relevant to the exercise of the discretion to grant a stay are not different in the case of a proceeding brought by a regulator, from those that apply in the case of a proceeding brought by a private plaintiff: CFMEU v ACCC at [60]–[62].

[63]    Eighthly, each case must be judged on its own merits; the matters that might individually, or in combination, be relevant to the exercise of the discretion are not rigid or closed; the factors identified in the authorities are not a prescriptive or an exhaustive statement of all of the considerations, or the weight to be attached to them: see Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2016] FCA 504 at [51] per Middleton J (application for leave to appeal dismissed: CFMEU v ACCC).

12    Applying these principles, it is necessary to consider each bases Ms Ke advances for a stay. As observed (ASIC v ANZ at [54]), it is for Ms Ke being the person who is applying for the stay to properly demonstrate that there are proper grounds for granting a stay. Otherwise, the Applicant will be entitled to have its proceeding dealt with and heard in the ordinary course.

District Court Criminal Proceeding

13    Ms Ke submits that there are related criminal proceedings in the District Court in Brisbane against her, brought by the Commonwealth Director of Public Prosecutions. Ms Ke submits that the two cases, the criminal proceeding in the District Court and this proceeding in the Federal Court, overlap. Both matters, Ms Ke submitted were about and were dealing with tax returns and information she had provided to the Australian Taxation Office (ATO). Furthermore, Ms Ke submits that both proceedings rely on ATO records and put her honesty in issue. Ms Ke submits that her honesty is the main issue in the District Court criminal proceeding, describing the 16 charges as “dishonesty charges”.

14    Ms Ke accepts (as is submitted by the Board) that the years involved in each of the proceedings are different. However, Ms Ke submits that to defend this proceeding brought by the Board, she would be required to give evidence and be cross-examined “about tax returns and (her) dealings with the ATO”, which the prosecution could use against her or would mean she has to reveal her defence before the trial in the District Court.

15    The Board submits that the evidence provided by Ms Ke (or that provided by the Board, which included obtaining a copy of the indictment, which Ms Ke did not put in evidence) does not demonstrate that there are proper grounds to justify a stay. The Board accepts that at a high level of generality there may be some conduct involving, what can broadly be described as “income tax returns”, however that is insufficient to support the stay sought. The Board submits that there is no overlap between the allegations involved in the proceeding before this Court and those in the District Court.

16    The proceeding in this Court concerns the Board’s allegations that between July 2021 and July 2025, Ms Ke contravened s 50-5 of the TAS Act by providing tax agent services for taxpayers, whilst not registered as a tax agent, for a fee or other reward.

17    The District Court criminal proceeding can broadly be described as (as summarised on the indictment):

(a)    Obtaining a financial advantage by deception (counts 1 to 3 and 16);

(b)    Using forged document (counts 4 to 14); and

(c)    Influencing a public official (count 15).

18    The period of time covered by these 16 charges is from June 2014 to May 2016. That is a significantly different period of time from the relevant period of time in the Board’s proceeding in this Court. There is no overlap between the time periods. Moreover, there is approximately a 5 year gap between the end of the period relevant in the District Court proceeding and the Board’s proceeding in this Court. On this basis alone, there is no real risk of prejudice to Ms Ke in this proceeding continuing. Matters which will be relevant in the Board’s proceeding, relating to July 2021 to July 2025, would not be relevant to the criminal proceedings involving matters from June 2014 to May 2016. There would be no prejudice to Ms Ke’s right to silence, privilege against self-incrimination or a risk to her defence in the District Court because of events that took place some 5 years after the events alleged in the District Court. Such events or circumstances occurring some 5 years later, would not, in any way, be relevant. This temporal consideration permeates through each of the charges and although relevant to a consideration of each of the categories of charges, will not be repeated.

19    For completeness, consideration will also be given to each of the categories of charges on the indictment.

20    The counts relating to obtaining a financial advantage are each on the basis that Ms Ke “obtain(ed) a financial advantage from the Commonwealth”. The allegations regarding contraventions under the TAS Act do not involve any allegations of obtaining a financial advantage from the Commonwealth, they involve allegations that Ms Ke provided tax agent services, as that term is defined under the TAS Act, whilst not a registered tax agent, for a fee or other reward. That fee or other reward is alleged to be charged to the individual taxpayer, to whom it is alleged the tax agent service was rendered, not the Commonwealth. On this basis, there is no real risk of prejudice to Ms Ke in this proceeding continuing.

21    The counts relating to using forged documents relate to the following kind of documents:

(a)    nine identified tax invoices (one which included an e-ticket, itinerary and receipt) ranging in dates from 31 July 2012 to 14 February 2014;

(b)    one business insurance certificate of currency dated 24 March 2013; and

(c)    one rental property schedule for 2013, for a property in Ashwood.

22    It is difficult to understand how documents of this kind could be relevant to the Board’s proceeding, and similarly how the Board’s proceeding could be relevant to these charges involving allegations of these kinds of forged documents. Ms Ke did not seek to go into evidence or make any submissions about how these documents would be relevant to the Board’s proceedings or how the Board’s proceedings would impact on these charges in the District Court, and hence why there was a real risk of prejudice to her, should this proceeding continue. On a consideration of the documents relating to the counts of using forged documents, there is no real risk of prejudice to Ms Ke in the District Court proceeding for the matter in this Court to continue.

23    Finally, the count of influencing a public official is on the basis that Ms Ke “did lodge with the Australian Taxation Office an Amended Income Tax Return for the period 1 July 2013 to 30 June 2014, for herself…”. This count relates to the lodgement of Ms Ke’s own income tax return. The allegations advanced by the Board relate to contraventions of the TAS Act, that Ms Ke provided tax agent services to other taxpayers. There is no real risk of prejudice to Ms Ke in the District Court proceeding for the matter in this Court to continue on a consideration of this count, it makes allegations regarding her own tax return.

24    Ms Ke did not give evidence or make any submissions which considered each of the 16 counts the subject of the District Court proceeding to support her submission that she would be prejudiced if this proceeding continued. Ms Ke’s submission was at a very high level of generality. On a consideration of the three different types of charges against Ms Ke and the evidence Ms Ke relies on (which included reading the indictment as part of her material) it has not been demonstrated that there is any overlap between the two proceedings. There is certainly no overlap in relation to the respective time periods for each proceeding. Furthermore, the allegations in each proceeding are materially different, they do not concern substantially the same or similar matters, events or circumstances. There would be no prejudice to Ms Ke’s right to silence, privilege against self-incrimination or a risk to her defence in the District Court because of the facts, matters and circumstances that the Board alleges in support of its case that Ms Ke contravened the TAS Act.

25    The general, high-level submission that Ms Ke relies on, that both matters involve questions regarding her honesty, tax returns or dealings with the ATO, is insufficient to support a stay. Although the specific matters of prejudice may not need to be particularly identified (ASIC v ANZ at [56]), Ms Ke bears the onus of demonstrating that she will suffer a real risk of prejudice. On the available evidence there is no overlap between the two proceedings, either by way of a temporal overlap or by way of a subject matter overlap. Broadly claiming that matters relate to tax returns or that issues regarding her honesty will be in issue, is insufficient. Each count in the District Court will have to be specifically proved beyond a reasonable doubt. The Board’s contentions and allegations regarding contraventions of the TAS Act will also have to be specifically proved, on the balance of probabilities.

26    For these reasons and on this basis, Ms Ke has not discharged the burden she bears to demonstrate on proper grounds that the proceeding in this Court should be stayed.

medical/health reasons

27    Ms Ke relies on earlier evidence that she has been diagnosed with lupus and lupus nephritis, which are said to be chronic and permanent lifelong conditions. However, she is (or was at the time of that report) fully compliant with her medication. This evidence does not support a submission that Ms Ke is unable to properly participate in any trial in this proceeding. However, Ms Ke may need additional hearing time to accommodate further breaks during the proceeding.

28    Ms Ke also relies on an incomplete psychiatric report to support her application for a stay. It is apparent (on the basis of an email from her solicitor in the District Court proceeding) that she relies on this report to support her submission that her capacity is such that she is currently medically unfit to have that matter in the District Court proceed to a final hearing. In response to the Board’s submission that the psychiatric report is incomplete and therefore insufficient, Ms Ke submits that the report deals with the criminal charges and that it would be unfair for this to be provided in full.

29    This evidence is insufficient to support a stay.

30    First, the psychiatric report is clearly incomplete. The psychiatric report (referring to the numbers at the end of each page, which appear to be the original page numbers) appears to only contain pages 8, 10 and 11. The three pages of the psychiatric report provided do not include any instructions that were provided for the preparation of the report. The incomplete psychiatric report also does not contain a date for the report, any date for any consultations undertaken for the report and hence when the opinion was actually made. In Ms Ke’s affidavit, to which she annexes this report, there is also no evidence of the date of the incomplete psychiatric report.

31    The following can be observed from the three pages of the psychiatric report which are in evidence:

(a)    “There was no evidence of any abnormality in thought form or processes”;

(b)    “Ms Ke did not complain of any perceptual abnormalities and she struck me as an individual of pre-morbidly good intellect. At the time of the examination, I noted no major impairments in her general insight or judgement”;

(c)    “Ms Ke was pre-morbidly a rather intelligent woman and she still has a sufficient understanding of the factual matters…”;

(d)    “At the time she committed her alleged offences, Ms Ke was not labo[u]ring under the influence of any mental disease or a natural mental infirmity”; and

(e)    “Ms Ke does not have a defence of unsoundness of mind available to her”.

32    However, the three pages of the psychiatric report also observes that Ms Ke did not perform well on some brief bedside cognitive testing. Further it appears that the psychiatric report relevantly, concludes that:

(a)    “Ms Ke is currently medically unfit to stand trial…” (in context this is a reference to the District Court criminal proceeding); and

(b)    “It is my impression, that Ms Ke might be permanently unfit for trial, therefore the court proceedings against her cannot safely proceed”.

33    There are three reasons why this medical evidence is insufficient, as a proper ground, to support a stay. First, the psychiatric report is incomplete. Being incomplete the Court is unable to form its own view about the reliability of the opinion. Furthermore, without the instructions for the psychiatric report, again the Court is unable to properly understand the basis for which the report was obtained. The Court is also unable to understand how the report was prepared, without any reference to any consultations. Second, the psychiatric report is undated. As such, the Court does not know the meaning of the conclusion that Ms Ke is “currently” medically unfit in terms of when that temporal opinion relates. Third, the conclusion that Ms Ke “might” be permanently unfit, is an opinion expressed with strong uncertainty.

34    Although the instructions for the psychiatric report have not been provided, it is clear from the three pages which are available that the psychiatric report is considering the criminal proceedings in the District Court. It is not known and Ms Ke did not produce any evidence to support a submission that the conclusion reached in the incomplete psychiatric report, with respect to the District Court criminal proceeding would also apply to these civil proceedings, alleging contraventions of the TAS Act brought by the Board.

conclusion

35    The Board is prima facie entitled to have its civil proceeding proceed to trial in the ordinary course. Ms Ke bears the onus of demonstrating that her application for a stay is based on proper grounds. The two bases Ms Ke relies on are insufficient to support her Applications for a stay.

36    The Applications must be dismissed, with costs.

37    One final observation should be made. In Ms Ke’s draft proposed Orders, she sought a referral for pro bono assistance under r 4.12 of the Federal Court Rules 2011 (Cth) (the Rules). A party is not entitled to make an application for such a referral: r 4.13 of the Rules. Further, the Court is under no obligation to provide reasons for any decision made in relation to the referral certificate: Jacob v Secretary Department of Social Services [2022] FCA 423 at [11] (Feutrill J).

38    The Court may take into account, “any other matter the Court considers appropriate” (r 4.12(2)(d) of the Rules), as well as the means of the party, the capacity of the party to otherwise obtain legal assistance and the nature and complexity of the proceeding (r 4.12(2)(a)-(c) of the Rules). Ms Ke’s recent affidavits states that she is “unemployed” and she advised from the Bar table, that her representation in the District Court criminal proceedings was funded by legal aid. As such, it appears that the means of Ms Ke favour a referral certificate. Ms Ke also stated from the Bar table, that legal aid would not fund legal assistance for the proceeding in this Court. This would also favour a referral certificate. The Board submitted that the hearing could take 2-3 days and there is likely to be cross-examination. That is, the proceeding is likely to be reasonably complex. Further, although Ms Ke’s chronic condition on the evidence available is insufficient to support a stay, in terms of “another matter” it would favour a referral certificate.

39    In these circumstances, it is appropriate to provide Ms Ke with a referral certificate. Of course, such a certificate does not guarantee representation, it only requires the Registrar to attempt to arrange for the provision of legal assistance: Jacob at [19].

40    The Applications for a stay are dismissed and timetabling orders, which make some allowance for the attempt to arrange pro bono assistance and the Christmas period (and observing that Ms Ke requested 8 weeks for her material should the stay be refused) will be made. The parties will be afforded liberty to apply and consulted in relation to the final hearing date.

Associate:    

Dated:    3 November 2026