Tax Practitioners Board v Hacker

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: RANGIAH J
• Judgment Date: 27 July 2020
• Neutral Citation: [2020] FCA 1047
• Date: 27 July 2020

FEDERAL COURT OF AUSTRALIA

Tax Practitioners Board v Hacker [2020] FCA 1047

File number:	QUD 106 of 2019
Judge:	RANGIAH J
Date of judgment:	27 July 2020
Catchwords:	TAXATION – alleged contraventions of s 50–5(1) of the Tax Agent Services Act 2009 (Cth) – where respondents provided unregistered tax agent services – whether an individual who provides tax agent services and a company which provides tax agent services through the individual can both contravene s 50–5(1) – whether individual respondent received fee or reward for providing tax agent services – where individual respondent was shareholder of company which charged for his tax agent services – where individual respondent was paid a wage by company which charged for his tax agent services – contraventions established ; TAXATION – alleged contraventions of s 50–5(2) of the Tax Agent Services Act 2009 (Cth) – whether individual respondent provided unregistered BAS services for reward – whether individual respondent knew or ought reasonably to have known that services were BAS services – contraventions established ; PRACTICE AND PROCEDURE – application to amend statement of claim – application made after evidence was closed – error made by applicant in allegations pleaded – whether respondents acquiesced in presentation of applicant’s case in a manner different from the pleaded case – where inadequate explanation for applicant’s delay – prejudice to the respondents by reason of respondents’ inability to investigate the new allegations – application dismissed
Legislation:	Australian Consumer Law (Sch 2 of the Competition and Consumer Act 2010 (Cth)) s 224 Competition and Consumer Act 2010 (Cth) s 139B Evidence Act 1995 (Cth) ss 56 and 140 Fair Work Act 2009 (Cth) ss 550 and 793 Tax Agent Services Act 2009 (Cth) ss 2–5, 2–10, 20–5, 20–20, 20–30, 20–45, 30–5, 30–15, 40–5, 40–10, 40–15, 50–5, 60–15, 90–1, 90–5 and 90–10 Federal Court Rules 2011 (Cth) rr 1.41 and 16.53
Cases cited:	Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Australian Securities and Investment Commission v Rich (2004) 213 ALR 338; [2004] NSWSC 1062 Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 Briginshaw v Briginshaw (1938) 60 CLR 336 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 Hamilton v Whitehead (1988) 166 CLR 121 Jackson v Crosby (1977) 16 SASR 1 Jones v Dunkel (1959) 101 CLR 298 Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414 Saunders v Cadman (1990) 54 SASR 534 The Queen v Goodall (1975) 11 SASR 94 Trustees of the Property of Cummins (a Bankrupt) v Cummins (2006) 227 CLR 278 Water Board v Moustakas (1988) 180 CLR 491
Date of hearing:	10–13 February 2020
Registry:	Queensland
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Category:	Catchwords
Number of paragraphs:	125
Counsel for the Applicant:	Mr S Couper QC with Mr D Chesterman
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondents:	Ms J Marr
Solicitor for the Respondents:	Fisher Dore

ORDERS

		QUD 106 of 2019
BETWEEN:	TAX PRACTITIONERS BOARD Applicant
AND:	KENT SCOTT HACKER First Respondent ; ONE STOP GLOBAL STAFFING PTY LTD ACN 097 166 204 Second Respondent ; NALEVIEW PTY LIMITED ACN 051 420 010 Third Respondent

JUDGE:	RANGIAH J
DATE OF ORDER:	27 JULY 2020

THE COURT ORDERS THAT:

1. By 4.30 pm on 21 August 2020, the applicant file and serve written submissions (not exceeding 10 pages) and any affidavits concerning penalties and other relief for contraventions of ss 50–5(1) and (2) of the Tax Agent Services Act 2009 (Cth).

2. By 4.30 pm on 11 September 2020, the first and second respondents file and serve written submissions in response (not exceeding 10 pages) and any affidavits.

3. By 4.30 pm on 18 September 2020, the applicant file and serve any written submissions in reply (not exceeding three pages) and any affidavits in reply.

4. The hearing of the question of penalties and other relief for contraventions of ss 50–5(1) and (2) of the Tax Agent Services Act 2009 (Cth) be set down for 10.15 am on 28 September 2020.

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

REASONS FOR JUDGMENT

RANGIAH J:

1. The applicant, the Tax Practitioners Board, alleges that the respondents contravened s 50–5 of the Tax Agent Services Act 2009 (Cth) (the TAS Act) by providing tax agent services and BAS services for a fee or reward while not registered to provide those services. The applicant seeks declarations, injunctions and the imposition of pecuniary penalties.

2. The first respondent, Kent Scott Hacker, denies all the allegations made against him. The second respondent, One Stop Global Staffing Pty Ltd (OSGS) admits some allegations, and denies others. The third respondent, Naleview Pty Limited (Naleview) also admits some allegations and denies others.

3. The hearing was conducted on the basis that the allegations of contravention would be determined first, and questions of penalties and other relief will be determined separately.

4. There are two significant features of the procedural history of the matter. The first is that on the second morning of the four day trial, the applicant sought leave to file a further amended pleading. This was opposed by the respondents. I heard argument upon the issue and reserved my decision. It will be necessary to deal with that issue as a preliminary matter.

5. The second feature is that the applicant has brought proceedings against OSGS and Mr Hacker for contempt of Court arising from their alleged breach of an undertaking given to the Court on 1 March 2019. The allegations are admitted by OSGS, but partly denied by Mr Hacker. I conducted a hearing of those charges at the conclusion of the hearing in relation to the alleged contraventions of the TAS Act. After my judgment was reserved, the applicant brought two further charges of contempt, which have been admitted by both Mr Hacker and OSGS. I will deal with the contempt charges in a separate judgment.

6. In respect of the allegations of contravention of s 50–5 of the TAS Act, I propose to proceed by:

• Describing the factual background against which the proceedings arises.

• Setting out the relevant statutory provisions.

• Identifying the allegations in the...