Case: Re Beadle and Director General of Social Security (1984) 6 ALD 1
Outcome: cited
The Tribunal, after considering a number of matters, stated at [74] as follows: I am prepared to find that the applicant's health, the circumstances within his practice and the tension within his marriage, most of which were at their peak in the 1990's, occurred during the same periods of time that income tax returns for himself and family entities were outstanding. But on the evidence of the applicant's doctors, and himself at the hearing, all medication ceased at February 2003 and he was regarded then as enjoying improved health. I would have thought that there would have been greater diligence on his part to immediately set about preparing returns and having them lodged. It is noted from other evidence that at or about this time the applicant's accountancy practice stabilized and another employee accountant of considerable expertise was engaged. However the applicant's outstanding personal returns were not lodged until October 2003 and the returns for other entities were not lodged until April, May or June of the following year. That is, some eight months after the applicant's health had been restored and medication had ceased and after his practice had stabilized he first lodged his outstanding personal returns but the other returns were not lodged until a period of between 14 and 16 months later. Set against a background of two prior Magistrates' Court appearances and a suspension from practice it would have been incumbent on the applicant to show a degree of "good fame, integrity and character" if his prior omissions should in the special circumstances that he asserted, be disregarded . (emphasis added) The Tribunal then proceeded to state at [77]: Following the analysis of the concept of special circumstances in both Beadle, Groth and Chamberlain , I cannot find the applicant's circumstances of ill health and vulnerability to an unstable rural economy whilst in regional practice, marriage instability and workplace stress, no less in self employment, are alone, or in combination, to be "unusual, uncommon or exceptional" nor could I find in the application of the relevant legislation that to decide to refuse re-registration would cause an outcome which was "unfair, unintended, unjust" or "inappropriate" . Then finally at [78] and [79] the Tribunal decided: Mr Moore acknowledged that the applicant had not ever been convicted of "a serious taxation offence" or at all (refer s 251BC) and he was not automatically disqualified from registration. It was also submitted that if special circumstances are found not to exist, the only decision open to the Board, upon an application for re-registration is refusal to register. No other option exists, for example, to suspend, or admonish. I agree with those submissions. The Tribunal is required to consider, in the circumstance of the case under review, to determine whether if special circumstances do exist whether to disregard the "omission" of an applicant. If the decision to refuse re-registration is affirmed, it is open to an applicant to apply, without any period of prohibition, to the Board for registration. If that course is followed, the applicant, at the time of such an application will have the opportunity to demonstrate that he is fit and proper. Section 251K appears to apply only where an agent has been suspended or where his registration has been cancelled. In the present case it was the applicant's application for re-registration that was declined. The applicant's history, Court appearances, previous suspension, subsequent default and neglect and the magnitude of it and its duration dictates that it would be inappropriate to decide other than to affirm the decision under review. 23 Whilst the references in [79] could be said to relate to the enquiry going to the affirmation of the decision under review, they are not sufficient to show, in light of the previous reasoning of the Tribunal, that the Tribunal considered for itself the ultimate issue. 24 In my view, the Tribunal failed to appreciate the matter it was bound to consider and failed to address the ultimate issue for consideration, and in so doing made an error of law. 27 The term 'special circumstances' is not defined in the Act. It is used according to its ordinary meaning. As was said in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3: An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special. 28 Whether there were 'special circumstances' was a question of fact for the Tribunal to decide. The Tribunal's conclusion that there were no special circumstances was a conclusion on a question of fact. It was a conclusion open to it on the facts as found. 29 Another complaint made by the applicant was that the Tribunal incorrectly took into account the charges against the applicant before the Magistrates' Court in 1990 for failing to lodge his 1989 return. I do not accept the Tribunal fell into error in this regard. There was nothing in the Act that bound the Tribunal to not take account of the applicant's appearance in the Magistrates' Court in 1990. In any event, the applicant raised the matter in his witness statement, as follows: In 1990 I was prosecuted for an offence of failing to file a tax return for the year ended 30 June 1989 contrary to section 8C of the Taxation Administration Act 1953 . At the hearing of that charge before the Magistrates' Court at Ballarat I pleaded guilty and was fined $500.00. Enquiries of the Magistrates' Court confirmed no recording of any conviction in regard to that charge and the imposition of that fine. This is consistent with no conviction being entered in the Court record notwithstanding the plea of guilty and the imposition of a fine. I believe I disclosed a conviction in relation to this matter in error when completing applications for re-registration as a Tax Agent in 1992 and 1995 lodged with the Respondent on 12 February 1992 and 16 March 1995 respectively ( T42 ) ( T45 ). He was cross-examined about the matter without objection.