Alyssa Treasury Services Limited v Commissioner of Taxation
[2010] FCA 967
FEDERAL COURT OF AUSTRALIA
Alyssa Treasury Services Limited v Commissioner of Taxation [2010] FCA 967
Citation: Alyssa Treasury Services Limited v Commissioner of Taxation [2010] FCA 967 Parties: ALYSSA TREASURY SERVICES LTD, PRE-PAID PROFESSIONAL ADMINISTRATION LIMITED and NIKYTAS NICHOLAS PETROULIAS v COMMISSIONER OF TAXATION and THE ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 443 of 2010 Judge: STONE J Date of judgment: 16 August 2010 Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 10(2)(b)(ii)
Federal Court of Australia Act 1976 (Cth) s 31A(2),s 37M
Freedom of Information Act 1982 (Cth) s 55
Income Tax Assessment Act 1936 (Cth) s 16Federal Court Rules O 20 r 5, O 54 r 71B(2)
Cases cited: Re Hart v Deputy Commissioner of Taxation (2002) AATA 1190 Date of hearing:
16 August 2010
Place: Sydney Division:
GENERAL DIVISION
Category:
No catchwords
Number of paragraphs:
13
First Applicant:
The 3rd applicant appeared with the leave of the Court
Second Applicant:
The 3rd applicant appeared with the leave of the Court
Third Applicant:
Appeared in person
Counsel for the First Respondent:
Dr K Stern
Solicitor for the First Respondent:
Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 443 of 2010
BETWEEN: ALYSSA TREASURY SERVICES LTD
First ApplicantPRE-PAID PROFESSIONAL ADMINISTRATION LIMITED
Second ApplicantNIKYTAS NICHOLAS PETROULIAS
Third ApplicantAND: COMMISSIONER OF TAXATION
First RespondentTHE ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
STONE J
DATE OF ORDER:
16 AUGUST 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application in the first respondent’s amended notice of motion filed in Court on 24 June 2010 is allowed.
2.The amended application for an order for review filed on 1 July 2010 is dismissed.
3.The applicants are to pay the first respondent’s costs of the proceeding.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 443 of 2010
BETWEEN: ALYSSA TREASURY SERVICES LTD
First ApplicantPRE-PAID PROFESSIONAL ADMINISTRATION LIMITED
Second ApplicantNIKYTAS NICHOLAS PETROULIAS
Third ApplicantAND: COMMISSIONER OF TAXATION
First RespondentTHE ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
STONE J
DATE:
16 AUGUST 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
I have before me an amended notice of motion filed on 24 June 2010, pursuant to which the first respondent, the Commissioner of Taxation seeks an order that the amended application filed on 1 July 2010 be dismissed on any one or more of the following bases:
(a)that the applicants have no reasonable prospect of successfully prosecuting the proceeding within the meaning of s 31A(2) of the Federal Court of Australia Act 1976 (Cth);
(b)that proceeding is frivolous or vexatious and/or an abuse of the process of the Court within the meaning of O 20 r 5(1) of the Federal Court Rules;
(c)pursuant to s 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act1977 (Cth) or
(d)that the application is premature and relief should be refused on discretionary grounds.
This proceeding was commenced by application for an order of review on 27 April 2010. By order of the Court made on 24 June 2010 the applicants were given leave to file an amended application no later than 28 June 2010. In fact, an amended application was filed after that date, on 1 July 2010. Despite the amended application being out of time the applicants were given leave to rely on it.
The amended application concerns a request made under the Freedom of Information Act 1982 (Cth) (FOI Act) by Mr Petroulias in respect of certain documents (FOI request). The handwritten request dated 20 June 2009 begins as follows:
I hereby, on both individual and principal/agent capacity, seek access to the documents referred to in this application in the form of [indecipherable] or properly redacted copies under the Freedom of Information Act.
I enclose herein authorisation signed by the various co-applicants, principals and/or agents whose documents and/or references to them in the same documents can be produced by you in response to two or more parties.
Mr Petroulias submits that opening paragraphs of the FOI request make clear that the application is a joint application made by him and 13 corporate entities who have authorised him to make application on their behalf. By a letter dated 5 February 2010 the solicitors for the Commissioner notified Mr Petroulias that the Commissioner regarded the FOI request as a request brought in Mr Petroulias’ personal capacity alone. Paragraph 4 of the letter states:
4.Notwithstanding your use of the term, ‘co-applicant’ our client has characterised your FOI request dated 20 June 2009 as a request brought in your personal capacity alone, on the following bases:
4.1your FOI request dated 20 June 2009 uses the terms of ‘co-applicant’ and ‘agent’ interchangeably. However, viewed as a whole your letter was construed as purporting to be made by you both in a personal and representative capacity, rather than as comprising FOI requests from a number of different applicants;
4.2you will recall that our client’s letter to you dated 5 August 2009 sought an application fee of $30.00. This is the prescribed fee for a single FOI application under regulation 5 of the Freedom of Information Regulations. Our construction of your letter of 20 June 2009 was apparent from that letter;
4.3it is not sufficient merely to claim to be an agent. As the Tribunal has previously held, authorisation or consent is not sufficient to overcome s 38 of the Freedom of Information Act 1982 … or vitiate the prohibition in s 16(2) of the Income Tax Assessment Act 1936 …
4.4…
In proceedings before the Administrative Appeals Tribunal Mr Petroulias sought review of a deemed refusal of his FOI request on the basis that the Commissioner had not replied to it within the statutory period. On 11 March 2010 there was a directions hearing before the Tribunal at which the Senior Member made a ruling. The Senior Member was subsequently asked to provide reasons for this ruling and treated the request as having been made under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). As the first respondent submits, in the circumstances there is room to doubt the application of s 13 on the basis that there was no decision within the meaning of that section. For present purposes it is not necessary to resolve that issue as Senior Member Allen in fact provided reasons for the ruling that he had made at the directions hearing on 11 March.
The Senior Member noted that he had stated at the directions hearing that he would follow the decision of Senior Member McCabe in Re Hart v Deputy Commissioner of Taxation (2002) AATA 1190 which concerned the Commissioner’s refusal to provide information pursuant to s 16 of the Income Tax Assessment Act 1936 (Cth). On the authority of Hart the Senior Member held that each individual must make a separate FOI application. Mr Petroulias contends that the Senior Member’s ruling was erroneous. For reasons that follow it is not necessary for me to resolve that issue.
As previously noted, the application to the Tribunal was for the review of a deemed refusal however the Commissioner subsequently made a decision which was notified to Mr Petroulias on 23 June 2010. That decision, which presumably incorporates the allegedly erroneous ruling, is currently the subject of review proceedings before the Tribunal.
The Commissioner asserts that the decisions of the first respondent that are currently under review in the AAT proceedings 2009/4884 and 2009/5090 provide the applicants with an adequate alternative remedy. Therefore the application should be dismissed pursuant to O 54 r 7(1)(b)(ii) of the Federal Court Rules or s 10(2)(b)(ii) of the ADJR Act. Furthermore, the Commissioner submits that the application is premature and relief should be refused on discretionary grounds.
If it was necessary for me to decide the question of whether there was a reasonable prospect of the applicant succeeding under s 31A(2) of the Federal Court of Australia Act1976 (Cth) I would be inclined to the view that there is no reasonable prospect of success in relation to this particular application. However, as I have decided that the application should be dismissed on other grounds it is not necessary for me to base my decision on that section and I expressly do not do so.
Section 37M of the Federal Court Act refers to the “overarching purpose of civil practice and procedure provisions.” It is a comparatively recent amendment and encompasses Parliament’s view that civil practice and procedure provisions have an overarching purpose of facilitating the just resolution of disputes, both according to law and as quickly, inexpensively, and efficiently as possible. In my view, proceeding with the present application would not meet the requirements of that section.
As the Commissioner has pointed out, s 55 of the FOI Act specifically provides for review of decisions made under that Act in the Administrative Appeals Tribunal. Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that a party to a proceeding before the Tribunal may appeal to this Court on a question of law. Assuming that the Tribunal does not depart from ruling to which the applicants object, which it is entitled to do, that ruling will be inherent in the Tribunal’s decision. As such, should the applicants be dissatisfied with the Tribunal’s decision and identify in it an error of law, there is the way open to them to seek review of that decision in this Court. In itself that is a sufficient reason for adopting the course which the Commissioner seeks.
Given the view expressed above it is not necessary for me to discuss the numerous other difficulties affecting the present application. The efficiency requirement of s 37M underpins the submissions made by the Commissioner that the present proceeding is premature and would involve undesirable fragmentation of any complaint which the applicants wish to make about the Commissioner’s, and perhaps, in due course, the Tribunal’s decision.
For these reasons the orders sought by the Commissioner should be made. Accordingly, the amended application will be dismissed. The applicants are to pay the first respondent’s costs of the proceeding.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate:
Dated: 6 September 2010
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