Austin, B.R. v Tax Agents Board

[1985] FCA 274

IN THE FEDERAL COURT OF 3UST3ALIA	)
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HEW SOUTH	WALES	DISTSICT	F.2:GISTP.Y	)	No. G 23 of 1985
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DIVISION GENERAL )

BETKEN :	BRIAN	ROLPJD	AUSTIN
Bppllcant

M D	:	T.W	AGENTS	‘ BOARD
Respondent

JUDGE MAKING ORDER	:	Morling J.
DATE OF ORDER	:	13 June 1985
WHERE MADE	:	Sydney

THE COURT ORDERS AS FOLLOWS:

1.	Costs of the appllcatlon to be pald by t h e
responaent.
...	7
flatter renitt?d t o the Bozrd for further
hearlnq.

IN THE FEDERAL COURT @F .SUSTRALIA	!
1
K54 SOUTH WLES DISTRiCT REGISTRY	) No. G 23 of 1985
1
GENERA= DIVISION	;

BETWEEN : BFIIMI ROLAND .%ETIN Applicant

AND :	TFX AGENTS	’ BOARD
Respondent

MORLING J. 13 June 1985

RZASONS FOR JUDGVENT

On 7 June I delivered reasons In thls matter f o r

answering in	the	necratlve	a	preliminary	questlon	of law
-

submitted to the Court. I then nade an order that the

declslon of the Tax .\uents’ Board of - 3uqust 1984 refuslng C O grant tne applicant’s appllostlm f o r registratlon as a ea:.: agent be cpashzd.

I stood t n c natter sver untll today to deal wlth the

questlon	of	costs and to	declde t n e	iutuie cource	of	the
:itl?atlon.

Frinciples that success	woulci lead	to him getting	an order f c r
costs in his favour.

It is true, as counsel for the respondent has

Indicated. that the respondent m arcrument adopted an almost

neutral position as to the way in which the question of lsx

should be amwered. Bevethelese. it was answered in a xay

favourable to the appllcant.

Moreover. the decislon of the Court on the questlsn

3111 be of use to the respondent Board in determlning future

applications for registration as tax agents. For all those

reasons I think the 3pproprlate order is that the respondent

should pay the applicant‘s costs.

!h” McCrudden has asked the Court not to remit the

matter to the Soard and to fl;.: 3 date f o r the further hearlng

of the matter. He azks that the Csurt hear ec1Aence 2 s t; :ne

sultablllt:? zf the applicant f o r reqlztratlsn as a tzx J?=:I:.

l+ asks th? Csurt, shcjuld it be zstisfled that his cllent is d

sultable person, to make an nrder that he be reqistersd as a

tax jqent.	This	course	13 opposed by counsel f o r the
r-spcndznt.

Admlnistratl-Je hzlslons (Judicial 2eview) Act to maks ?,n order

directmg the Eoard to reglster the applicant ss a r x agent.

But even l? there 1 s such power thls Yould nzc be an

appropriate case f o r c i ~ e exercise of It.

khat vi11 be involved m the present case 1 s S

conslderatlon of the suitability of tne appllcant for

reglstratlon as a tax agent. It 1 s plaln from the material

that I have already seen that that question can only be

aetermined after a full examination of the apFlicant’s past hlstory as a tax agent and his current suitabi1;ty as a tax

agent. Those a r e questions whlch should be determln.-d by the

Eoard and not by this C m r t .

It IS possible to tnvlsaqe a case In which this Court

xould dlrect registration cf a person as a tax agent, for example, If the oniy reason why the Eoard found agsmst an applicant xas that he was not an Australian cltlzen. In such 3 czce, ~f the Court found that not to be zn ?szsntls.:

requlroment. I: nught Itself detsraine the nlatt?r. Eut :!-Ld

1 s nzt such ?, case. Accordingly, the proper o r c ~ ? ~ ‘ to a a h 12

m a c the natttr be remitted to the bard.

4 .

the .bard aqain rejects Mr Austin's arplication, he will feel that it xas rejected because the Eoard had aireaay made up its

mind on the matter. I do pot t h i n k for one moment that the

Board xould act unfairly nor do I suqqest that It would not

revers? Its earlier decision li it thcuqht it proper to do so,

but that is not the point. I thlnk it can hardly be expected that a laymm would share that vlew, particularly a layman

xhoze livelihood 1s at stake. I therefore thlnk that every

step should be taken to ensure that a differently constituted

Board hear Mr Austin's application.

The order 1 s that the respondent pay the costs of the

application.	The orders I make in addltlon to the orders made
m 7 June are:

1. C o s t s of the appllcation to be paid by

the respondent.

7 _. Matter remitted to tile Eoxfd f o r

furthtr hearlnq.