Tax Practitioners Board v Hacker (No 4)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 10 August 2021
• Neutral Citation: [2021] FCA 940
• Date: 10 August 2021

Federal Court of Australia

Tax Practitioners Board v Hacker (No 4) [2021] FCA 940

File number:	QUD 106 of 2019
Judgment of:	ABRAHAM J
Date of judgment:	10 August 2021
Catchwords:	CONTEMPT OF COURT – contempts by first and second respondent admitted – consideration of appropriate penalties – consideration of age and health of first respondent and dependant spouse – comparison of similar cases – imposition of sentence of imprisonment on first respondent – imposition of fine on second respondent
Legislation:	Tax Agent Services Act 2009 (Cth) ss 70-5, 90-5
Cases cited:	Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949; (2002) 121 FCR 24 Australian Competition and Consumer Commission v Halkalia Pty Ltd (No 3) [2017] FCA 522 Australian Securities Investments Commission v Matthews [2009] NSWSC 285 Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 Deputy Commissioner of Taxation v Hickey [1999] FCA 259 Director of Fair Work Building Industry Inspectorate v Cartledge (No 2) [2015] FCA 851 Ferguson v Dallow (No 5) [2021] FCA 698 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90 Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83; (2006) 149 FCR 494 Matson v Attorney-General (Cth) [2021] FCA 161 Matthews v ASIC [2009] NSWCA 155 at [129] McDonald v Australian Building and Construction Commissioner [2011] FCAFC 29; (2011) 202 IR 467 R v Edwards (1996) 90 A Crim R 510 R v Pham [2015] HCA 39; (2015) 256 CLR 550 R v Smith (1987) 44 SASR 587 R v Wirth (1976) 14 SASR 291 Sydney Medical Service Co-operative Limited v Lakemba Medical Services Pty Ltd (No 2) [2016] FCA 1188 Tax Practitioners Board v Hacker (No 3) [2020] FCA 1814 Thunder Studios Inc (California) v Kazal (No 2) [2017] FCA 202 Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17; (2011) 276 ALR 596 Witham v Holloway (1995) 183 CLR 525
Division:	General Division
Registry:	Queensland
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	69
Date of hearing:	27 July 2021
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 Lawyers

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

order made by:	ABRAHAM J
DATE OF ORDER:	10 August 2021

THE COURT NOTES THAT:

1. Pursuant to order 18 made by Rangiah J on 18 December 2020, the first respondent’s admission to the contempts the subject of these proceedings has the consequence that he is to serve the balance of the sentence imposed on him that day.
   
   
   

THE COURT ORDERS THAT:

1. In relation to the first respondent, I impose a sentence of four months’ imprisonment for each contempt to be served concurrently, but cumulative on the balance of the sentence imposed by Rangiah J on 18 December 2021. After two months of the four month sentences have been served in custody, the balance of the sentences will be suspended from execution on the condition that if the first respondent contravenes orders 9 and 10 made by Rangiah J on 18 December 2020 within five years of the date of this order, he shall serve the balance of the sentences.

2. In relation to the second respondent, I impose a fine of $5000.

3. The respondents pay the costs of these proceedings on an indemnity basis, to be agreed or taxed.

4. The first respondent is to surrender himself to the authorities in accordance with the terms the warrant before 4 pm on 11 August 2021.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1. On 18 December 2020, this Court permanently restrained the respondents from providing or offering to provide any tax agent services (as defined in the Tax Agent Services Act 2009 (Cth) (TAS Act)), for fee or reward, unless that respondent was, at the relevant time, registered to provide those services under the TAS Act: Tax Practitioners Board v Hacker (No 3) [2020] FCA 1814 (Hacker (No 3)). As admitted by the respondents, on 28 January 2021, the first and second respondents breached that injunction, and thereby engaged in conduct in contempt of court. On 19 April 2021, the Tax Practitioner Board (the Board) filed this application (and an accompanying statement of charge), bringing its sixth contempt application against the respondents before this Court.

2. On 29 April 2021, eight days after being served with the statement of charge, the respondents notified the applicant in writing that liability would not be contested. The admissions were formally made on the occasion the matter was listed for hearing. Accordingly, it falls to this Court to sentence the respondents.

3. For the reasons below I impose on the first respondent a sentence of four months’ imprisonment for each of the contempts of court, to be served concurrently, but cumulative on the outstanding balance of the sentence imposed by Rangiah J on 18 December 2020. Of the sentences imposed, I order that after Mr Hacker has served two months of the sentences of imprisonment I have imposed, the balance will be suspended from execution on the conditions detailed at [63]. I impose on the second respondent a fine of $5000.

Factual background

4. On 18 December 2020, Rangiah J imposed penalty orders for breaches of the TAS Act on the respondents. Significantly, Rangiah J also found the respondents guilty of a number of offences of contempt. The history of the proceedings, and the contempts then in question, were summarised by Rangiah J in Hacker (No 3) at [109]-[123]. It is appropriate and sufficient at this stage to recite that summary:

[109] On 12 February 2019, the applicant filed an Originating Application commencing the principal proceedings against the respondents for contraventions of s 50–5 of the TAS Act (the Contravention Proceedings). The Originating Application also sought interlocutory injunctions restraining the respondents from providing tax agent services or BAS services for fee or reward.

[110] On 1 March 2019, I dismissed the application for interlocutory injunctions upon the giving of the following undertaking by the respondents:

On a without admissions basis, until further order of the court or final disposition of this proceeding, each respondent (and in the case of the first respondent, either personally or on behalf of another entity) will not provide tax agent services within the meaning of s 90–5 of the Tax Agent Services Act 2009 (Cth) or BAS services within the meaning of s 90–10 of...