The Trustee of the Mladenis Family Trust T/A Affinity Consulting Services v Commissioner of Taxation [2006] FCA 1406

FEDERAL COURT OF AUSTRALIA

The Trustee of the Mladenis Family Trust T/A Affinity Consulting Services v Commissioner of Taxation [2006] FCA 1406

PRACTICE AND PROCEDURE – appeal from decision of the Administrative Appeals Tribunal to refuse an application for reinstatement of proceedings – application for reinstatement based on substantive case having 'strong merits and a good chance of success' and the appellant having not received the notice of listing for the hearing of the substantive application – whether Tribunal erred in refusing an application by the appellant for an adjournment to explain the circumstances of its non-appearance before the Tribunal in light of evidence of an email indicating service of the notice of listing – whether given reasonable opportunity to present case – whether Wednesbury unreasonableness in the exercise of the reinstatement discretion by the Tribunal member Held: The appeal be dismissed. Appellant not denied procedural fairness in the circumstances where the appellants' non-appearance at the hearing was so evidently a live issue that the appropriate investigations as to this issue should have been undertaken and Counsel for the appellant should have been briefed on this matter. No Wednesbury unreasonableness in the Tribunals finding not to accept the appellants excuse for non-attendance or in the Tribunal's assessment of the merits of the case.

Administrative Appeals Tribunal Act 1975 (Cth) ss 42A, 68AA

Applicant VEAL of 2002 v MIMIA (2005) 222 ALR 411 cited Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 applied FAI Insurances Ltd v Winneke (1982) 151 CLR 342 cited Kioa v West (1985) 159 CLR 550 considered Kruger v Commonwealth (1997) 190 CLR 1 cited Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 cited Manoli v Secretary to the Department of Social Security (1994) 35 ALD 133 cited NARV v MIMIA (2003) 133 FCR 89 cited Sheikholeslami v Brungs [2006] FCA 933 cited State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 cited Sullivan v Department of Transport (1978) 20 ALR 323 applied