Byrt v Deputy Commissioner for Taxation
[2015] FCCA 1761
•26 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BYRT v DEPUTY COMMISSIONER FOR TAXATION | [2015] FCCA 1761 |
| Catchwords: ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – questions of law – whether Tribunal properly applied s.42A(10) of the Administrative Appeals Tribunal Act 1975 (Cth) – no error demonstrated. |
| Legislation: Administrative Appeals Tribunal Act 1975, ss.42A(5), 42A(10) |
| Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385 Goldie v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 383 Re the Taxpayer and the Commissioner of Taxation (2002) 68 ALD 143 Tarrant v Australian Securities and Investments Commission [2015] FCAFC 8 |
| Applicant: | TERENCE JOHN DALEEN BYRT |
| Respondent: | DEPUTY COMMISSIONER FOR TAXATION |
| File Number: | BRG 444 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 11 February 2015 |
| Date of Last Submission: | 11 February 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 26 June 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr Brennan |
| Solicitors for the Respondent: | McInnes Wilson |
ORDERS
The Amended Notice of Objection to Competency filed on 28 July, 2014 is dismissed.
The Amended Notice of Appeal filed on 7 April, 2014 is dismissed.
The applicant pay the respondent’s costs of and incidental to the application to be assessed according to the Federal Court Rules2011 up to and including 16 May, 2013 and thereafter according to schedule 1 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 444 of 2014
| TERENCE JOHN DALEEN BYRT |
Applicant
And
| DEPUTY COMMISSIONER FOR TAXATION |
Respondent
REASONS FOR JUDGMENT
On 21 June, 2013 the applicant filed two applications for review of certain decisions of the respondent in the Administrative Appeals Tribunal. The respondent’s decisions related to assessments of income tax and administrative penalties imposed upon the applicant for the years ended 30 June, 2007 and 30 June, 2008. On 27 November, 2013 a Deputy President of the AAT dismissed those two applications (numbered 2013/2998 and 2013/2999) pursuant to s.42A(5) of the Administrative Appeals Tribunal Act1975 (Cth) (AAT Act).
On 20 December, 2013 the applicant applied to the AAT to reinstate the two proceedings that had been dismissed by the Deputy President pursuant to s.42A(10) of the AAT Act. On 23 January, 2014 a Senior Member of the AAT refused that application.
By the amended application now before this Court the applicant appeals the decision of the Senior Member to refuse to reinstate the proceedings that had been dismissed by the Deputy President.
The applicant commenced these proceedings in the Federal Court of Australia in February, 2014. They were transferred to this Court by an order of Logan J made on 16 May, 2014.
There are related proceedings also commenced in the Federal Court and transferred to this Court that seek to challenge the decision of the Senior Member: BRG491 of 2014. In those proceedings, the applicant seeks an extension of time within which to commence an application under the Administrative Decision (Judicial Review) Act 1975. Those proceedings were heard together with this application. I have delivered separate reason for decision and orders in respect of that application: Byrt v Deputy Commissioner for Taxation [2015] FCCA 1762.
Preliminary Issue
The respondent has filed a notice of objection to the competency of the appeal because, he argues, it is not made on a question or questions of law.
What are said to be the questions of law arising on this appeal are set out in the amended notice of appeal as follows (errors in the original):
A. QUESTIONS OF LAW
1. There were questions of law involved in the Tribunal’s Senior Member Bernard J McCabe’s decision on 23 January 2014 namely:
(a) Whether, on the evidence before the Tribunal that:
(i)it was possible to have adopted an alternative course, namely, offering the Applicant an opportunity to proceed with a hearing on the T- documents.
the Tribunal’s Senior Member Bernard J McCabe’s decision that Deputy President PE Hack SC’s decision on 27 November 2013 to dismiss the Proceedings, without offering the Applicant an opportunity to proceed with a hearing on the T-documents was not in error within the meaning of section 42A(10) of the AAT Act;
(i) was not authorised by the enactment in pursuance to which it was purported to be made (namely, section 42A(10) of the AAT Act);
(ii) involved an error of law:
(iii) was a breach of the rules of natural justice in connection with the making of the decision: and
(iv)was an improper exercise of the power conferred by the enactment in pursuance of which the decision was purportedly made (namely, section 42A(1) of the AAT Act) by.
A. failing to take relevant considerations into account In the exercise of the power: and
B. exercising a power that is so unreasonable that no reasonable person could have so exercised the power.
(b)Whether. given the matters referred to in question 1(a) of this pleading. the Tribunal’s Senior Member Bernard J McCabe’s decision that the discretion to reinstate the Proceedings under section 42A(10) of the AA T Act has not been enlivened;
(i)was not authorised by the enactment in pursuance to which it was purported to be made (namely, section 42A(10) of the AAT Act);
(ii)involved an error of law: and
(iii) was an improper exercise of the power conferred by the enactment in pursuance of which the decision was purportedly made (namely, section 42A(10) of the AAT Act) by.
A. failing to take relevant considerations into account in the exercise of the power: and
B. exercising a power that is so unreasonable that no reasonable person could have so exercised the power.
(c)Whether. on the evidence before the Tribunal that:
(i)it was possible to have adopted an alternative course. namely. offering the Applicant an opportunity to proceed with a hearing on the T-documents.
the Tribunal’s Senior Member Bernard J McCabe’s decision that the Applicant was not denied an opportunity to present his case and there had not been a failure to afford procedural fairness in the decision to dismiss the Proceedings without offering the Applicant an opportunity to proceed with a hearing on the T-documents
(ii)was not authorised by the enactment in pursuance to which it was purported to be made (namely, section 42A(10) of the MT Act);
(iii)involved an error of law:
(iv)was a breach of the rules of natural justice in connection with the making of the decision: and
(v)was an improper exercise of the power conferred by the enactment in pursuance of which the decision was purportedly made (namely. section 42A(10) of the AAT Act) by.
A. failing to take relevant considerations into account in the exercise of the power: and
B. exercising a power that is so unreasonable that no reasonable person could have so exercised the power.
In appeals made pursuant to s.44(1) of the AAT Act, the specification of the question of law said to arise from the decision under challenge is a jurisdictional requirement. Absent a properly specified question of law, the Court is bereft of jurisdiction to entertain the application before it. In Tarrant v Australian Securities and Investments Commission [2015] FCAFC 8 at 100, the Full Court of the Federal Court of Australia summarised the position:
100. It is desirable to set out some relevant principles applying to the scope of an “appeal” under s 44 of the AAT Act (which, as noted above, arises in the Court’s original, and not its appellate, jurisdiction). The principles are relevant not only to the objection to competency but also to the scope of review in a s 44 appeal in respect of a matter which is properly presented as a question of law . The principles are relatively settled and may be summarised as follows:
(a) the phrase “on a question of law “ is narrower in scope than an appeal which merely “involves” a question of law , with the consequence that where an appeal lays “on a question of law”, the subject matter of the appeal is the properly framed question or questions of law (see Brown v Repatriation Commission [1985] FCA 194; (1985) 7 FCR 302 at 304 and Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522 at [11]- [17] (Etheridge));
(b) the narrow sense in which an “appeal” lays to the Court from any decision of the AAT on a question of law “is entirely consistent with a statutory intention to limit the Court’s review of factual findings” (see Cyonara at [112]);
(c) generally speaking, a mixed question of law and fact is not a “ question of law “ for the purposes of s 44 of the AAT Act (see, for example, Etheridge at [16]; Hussain v Minister for Foreign Affairs [2008] FCAFC 128; (2008) 169 FCR 241 at [32]; Roy Morgan Research Pty Ltd v Commissioner of Taxation [2010] FCAFC 52; (2010) 184 FCR 448 at [26] and [33]; Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8; (2011) 119 ALD 272 at [39]; Cyonara at [112] and Sullivan at [117]), but note also the qualifications which may need to be made to that bald proposition as expressed in Collins v Administrative Appeals Tribunal [2007] FCAFC 111; (2007) 163 FCR 35 (Collins) at [55] per Allsop J (as his Honour then was) with whom Lindgren and Emmett JJ agreed; Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd [2010] FCAFC 94; (2010) 186 FCR 410 (Trail Bros) at [12] per Dowsett and Gordon JJ and Comcare v Martinez (No 2) [2013] FCA 439; (2013) 212 FCR 272 (Martinez No 2) at [87] per Robertson J;
(d) some of the kinds of errors of law which are amenable to review under s 44 of the AAT Act are reflected in the following statements by the Full Court (Black CJ, Drummond and Ryan JJ) in Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581 (Hill) at [59]:
If a tribunal falls into an error of law “which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers”: see Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179. An error of law of this kind may support an appeal under s 44 of the AAT Act on a question of law : cf The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services [1992] FCA 599; (1992) 39 FCR 225 at 231-232 per Wilcox, Burchett and French JJ;
(e) ordinarily there is no error of law simply in making a wrong finding of fact (see Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at 154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ approving Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77 per Brennan J (as his Honour then was). However, a determination of a question of fact by the AAT may give rise to a question of law, including (non-exhaustively) in circumstances where there is a question raised whether the AAT has identified the relevant legal tests to be applied; whether the Tribunal has in fact actually applied the correct test even if its reasons suggest otherwise; whether there is evidence to support a finding of fact, whether facts found fall within a relevant statutory provision and whether the AAT has adopted a manner of decision-making which fails to discharge its obligations according to law (see Trail Bros at [13] and Cyonara at [113]-[115]);
(f) findings or inferences of fact that are not supported by logical grounds may also give rise to an error of law and be reviewable under s 44 of the AAT Act (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS)) in the context of judicial review for jurisdictional error as opposed to a s 44 AAT Act appeal, however, it is unnecessary to explore this possibility any further here in the context of such an appeal or consider the implications, if any, for such an appeal in light of the High Court’s recent decision in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) on review of a decision for unreasonableness (again for jurisdictional error) because Mr Tarrant does not claim that the AAT’s decision or findings of fact were illogical or unreasonable in a legal sense (as to which, see Sullivan at [119] per Flick and Perry JJ);
(g) the weighing and evaluation of various pieces of evidence is a matter for the AAT and is generally not susceptible to review in either judicial review proceedings for jurisdictional error (see Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [197] per Gummow and Hayne JJ and Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 (SZJSS) at [33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ), or in an “appeal” under s 44 of the AAT Act (see Brown v Repatriation Commission [2006] FCA 914 at [7] per Branson J and Fisse v Secretary, Department of the Treasury [2008] FCAFC 188; (2008) 172 FCR 513 at [152] per Flick J). As the Full Court (Fox, Deane and Morling JJ) observed in Collins v Minister for Immigration and Ethnic Affairs [1981] FCA 147; (1981) 58 FLR 407 at 410-411 in the context of an appeal under s 44 of the AAT Act and in response to a claim that a Tribunal decision was against the evidence or the weight of the evidence (emphasis added):
A number of authorities was cited by counsel for the appellant in support of the propositions that the making of a decision against the evidence or the weight of the evidence and the making of an unreasonable decision are errors of law. We find it unnecessary to examine these authorities for the reason that, in our opinion, there is no factual basis to found those propositions. We would, however, comment that the concepts of a decision being against the evidence and of being against the weight of the evidence belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they did not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence, subject to their obligation to observe the requirements of natural justice, can inform itself as it chooses (see, s 33(1)(c) of the Administrative Appeals Tribunal Act 1975.) An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based; and
(h) the Court has acknowledged that, in at least some circumstances, the Court itself might frame questions of law in order to found its jurisdiction under s 44 of the AAT Act. For example, in Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80; (2011) 55 AAR 300, the Full Court (Marshall, Tracey and Flick JJ) said at [16] that it was prepared to entertain applications for judicial review notwithstanding the fact that the notice of appeal purportedly made under s 44 of the AAT Act was deficient:
We are prepared to entertain Mr Rana’s applications for judicial review although, for reasons which will shortly appear, we do not consider that any of the grounds raised have any substance. Mr Rana is an unrepresented litigant and, when examined, some, at least, of his claims, had they properly been formulated, could have constituted questions of law for the purposes of s 44 of the AAT Act. In such circumstances, the Court has been prepared to frame appropriate questions and answer them: see, for example, Birdseye at 60-1. In any event, decisions made by the Tribunal are subject to judicial review by this Court, albeit normally not pursuant to the ADJR Act.
Arguably, as framed, the current iteration of the notice of appeal does not specify any questions of law. Some reformulation of the questions posed by the applicant in the amended notice of appeal, however, might help to illuminate the questions that he has attempted to ask.
As to Question 1(a), shorn of that which is unnecessary, the question posed might be reformulated as follows:
On the evidence before the Tribunal that it was possible to have offered the Applicant an opportunity to proceed with a hearing on the T- documents, was the Tribunal’s decision (that the Deputy President’s decision on 27 November 2013 to dismiss the Proceedings without offering the Applicant an opportunity to proceed with a hearing on the T-documents was not made in “error” within the meaning of s.42A(10) of the AAT Act):
(a) authorised by s.42A(10) of the AAT Act?
(b) an error of law?
(c) a breach of the rules of natural justice in connection with the making of the decision? and
(d)an improper exercise of the power conferred by s.42A(10) of the AAT Act because either:
A.he failed to take relevant considerations into account in the exercise of the power? or
B.the exercise of the power is so unreasonable that no reasonable person could have so exercised the power?
Similarly reframed, question (1)(b) might look like this:
Was the Tribunal’s decision (that the discretion to reinstate the Proceedings under s.42A(10) of the AAT Act had not been enlivened):
(a) authorised by s.42A(10) of the AAT Act?
(b) an error of law? and
(c)an improper exercise of the power conferred by s.42A(10) of the AAT Act because either:
A.he failed to take relevant considerations into account in the exercise of the power? or
B.the exercise of the power is so unreasonable that no reasonable person could have so exercised the power?
And question (1)(c) might look like this:
On the evidence before the Tribunal that it was possible to have offered the Applicant an opportunity to proceed with a hearing on the T-documents was the Tribunal’s decision (that the Applicant was not denied an opportunity to present his case and there had not been a failure to afford procedural fairness in the decision to dismiss the Proceedings without offering the Applicant an opportunity to proceed with a hearing on the T-documents):
(a) authorised by s.42A(10) of the AAT Act?
(b) an error of law?
(c)a breach of the rules of natural justice in connection with the making of the decision?
(d)an improper exercise of the power conferred by s.42A(10) of the AAT Act because either:
A.he failed to take relevant considerations into account in the exercise of the power? or
B.the exercise of the power is so unreasonable that no reasonable person could have so exercised the power?
Given that the questions posed in the amended notice of appeal can be reframed to ask proper questions of law, the Notice of Objection to Competency will be dismissed.
The Context
To give the reframed questions some context, it is necessary to set out s.42A(10) of the AAT Act and the relevant aspects of the Tribunal’s decision now under challenge.
Section 42A(10) provides:
42A Discontinuance, dismissal, reinstatement etc. of application
…
(10) If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
As to the decision of the Tribunal the subject of this appeal, after setting out brief details of the circumstances in which Mr Byrt’s application to reinstate the proceedings had come about, the Senior Member said:
4. The power in s 42A(10) of the Administrative Appeals Tribunal Act 1975 is directed to cases where it would be unfair to deny an applicant the opportunity to progress his application as a result of some unfortunate error that tells us nothing about the strength of the case or the applicant’s commitment to seeing the matter through to conclusion. That explains why the Full Federal Court in Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367 said the expression “error” was not confined to errors on the part of the Tribunal. But Wilcox and Downes JJ in Goldie added there must actually be an error attending the act of dismissal before the discretion to reinstate was enlivened: at [28]-[29]. The existence of such an error is a jurisdictional fact.
5. I am not satisfied Deputy President Hack’s decision was attended by error. He set out the procedural history and drew an inference from those facts. There is no suggestion he has misstated or misunderstood that history. He was aware Mr Byrt was unrepresented and that Mr Byrt had other proceedings on foot. The deputy president drew a conclusion that was plainly open to him.
Goldie v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 383 was a case where an applicant in the AAT had his application dismissed for want of appearance pursuant to s.42A(2) of the AAT Act. He applied for reinstatement pursuant to s.42A(10), but that was refused. The decision to refuse reinstatement turned upon the applicant’s failure to establish that the decision to dismiss his application had not been made in error for the purposes of s.42A(10). The Full Court in Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385 had taken a narrow view of the meaning of the word error where it appears in s.42A(10) of the AAT Act confining it to administrative error that led to the dismissal of the proceedings. The AAT had applied that approach to Mr Goldie’s application for reinstatement.
However, the Full Court in Goldie determined that the word error was not so confined where it appeared in s.42A(10). Error encompasses error of any description. Nonetheless, notwithstanding that the tribunal had wrongly construed that word in s.42A(10), the reinstatement application failed because the majority (Wilcox and Downes JJ) determined that there had been no error for the purposes of that section.
The power to reinstate proceedings pursuant to s.42A(10) of the AAT is not an unlimited or unfettered power. In Goldie the plurality (at 388) identified that two conditions need to exist before the power to reinstate is enlivened. First, the AAT must have dismissed the relevant application. Second, the act of dismissal must be attended by error.
Goldie is still binding authority.
The error relied upon by the applicant here is the alleged failure by the Deputy President to dismiss the proceedings without offering the applicant an opportunity to proceed with a hearing on the T-documents alone. To understand that, it is necessary to know something of the Deputy President’s decision. But it is important to note that it is not that decision which is the subject of the appeal before me.
On 27 November, 2013 Deputy President Hack had before him an application by the respondent to dismiss the underlying proceedings for the failure of the applicant to comply with the directions of the Tribunal to prepare the applications for hearing. After cataloguing the applicant’s defaults, the Deputy President said:
10. There is, as was submitted by the Commissioner today, a long history of non-compliance by Mr Byrt. In response to the Commissioner’s argument today, Mr Byrt essentially sought to have these proceedings adjourned for several months to enable him to conclude other proceedings in which he is involved with the Commissioner. He provided no detail of what those proceedings were and how they are related to the present proceedings other than the suggestion that his lawyers needed to concentrate on those other proceedings. Given that the lawyers ceased to act for him in early September 2013 the argument is curious.
11. It is to be borne in mind that the Parliament, by s 2A of the Administrative Appeals Tribunal Act 1975 (Cth), has required the Tribunal to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. To that end, directions were made that would bring the matter on for hearing at an early opportunity. At no stage has a direction been made regarding the delivery of Mr Byrt’s material other than in accordance with a request made either by the solicitors representing Mr Byrt or by Mr Byrt himself.
12. I am left to conclude that Mr Byrt failed within a reasonable time to comply with directions of the Tribunal, most recently the direction made by Senior Member McCabe on 30 October 2013 to lodge and serve his material by 18 November 2013. Given the earlier history, I consider that a reasonable time has elapsed after that date, particularly in circumstances where Mr Byrt cannot suggest any time within which he might comply with the direction. Moreover I am well satisfied that Mr Byrt is not genuinely interested in pursuing these proceedings. He has simply failed to proceed with the application. Accordingly I will dismiss the application pursuant to s 42A(5) of the Administrative Appeals Tribunal Act. I am satisfied that each of paragraphs (a) and (b) are made out on the evidence before me.
Mr Byrt now argues that the Deputy President ought to have suggested or offered to him the option of conducting the hearing without the benefit of any of the material that Mr Byrt was to give to the Tribunal in accordance with its directions. The hearing might then have proceeded on the T-documents alone.
To support his argument, Mr Byrt points to Re the Taxpayer and the Commissioner of Taxation (2002) 68 ALD 143. That case concerned the dismissal of an application pursuant to s.42A(5) of the AAT Act following consistent failures by the applicant to comply with directions designed to ready the application for hearing. In that decision Deputy President Block said:
(7)(a) A close and careful examination of the dismissal date transcript, indicates, in relation to the applicant, statements which are inherently and directly contradictory, and are not possible to reconcile. He indicated in the clearest possible terms that he wished to present evidence and said that his own statement was close to completion. On the assumption that the hand-written notes, to which I have referred, constituted his statement, his claim that his statement was nearly complete was exaggerated. And in any event, there was another witness whose evidence he wished to present. However, there is also an indication that the applicant might have been prepared to rely on the documents then before me, being the T documents.
(b) The applicant had repeatedly sought extensions of time within which to furnish written statements. I dismissed the applications under subs (5) of s 42A of the Act in the exercise of discretionary powers, and having regard to the applicant's repeated and consistent failures detailed earlier in these reasons. It might be thought that the applicant deserved dismissal in all the circumstances in the light of those consistent failures, and having regard to the altogether cavalier manner in which he treated directions by this tribunal. But there is another view; it is arguable that it would have been preferable for me to offer the applicant the opportunity of proceeding to a hearing on the papers before me, and being of course the T documents. There is a possibility that he would have accepted; as to whether he could have run his case on the basis of the T documents alone, and having regard to the nature of the issues as described to me by Mr Robinson, is another matter. The applicant was self-represented and deserving of special consideration; the fact that this offer was not made may have resulted in prejudice (and a denial of natural justice) to the applicant, and constituted, in my view, and on reflection, an error.
Of this argument, Senior Member McCabe said:
6. Mr Byrt relied on the reasoning in The Taxpayer and Commissioner of Taxation [2002] AATA 523. In that case, the Tribunal concluded its earlier decision to dismiss an application was attended by error because it was possible to have adopted an alternative course – namely, offering the applicant an opportunity to proceed with a hearing on the papers. In effect, the Tribunal was using the power under s 42A(10) to remedy what may have been a failure to afford procedural fairness. I am unsure the power under s 42A(10) can be used in that way, but I do not need to express a concluded view on the point as I am not persuaded the applicant in this case was denied an opportunity to present his case. He had ample opportunity to be heard, but he failed to seize that opportunity (or at least offer a convincing explanation for his failure to do so). I have not heard anything in the course of the reinstatement application that would suggest a different view of the facts is appropriate.
7. The decision to dismiss the proceedings was not attended by error within the meaning of s 42A(10). The discretion to reinstate has not been enlivened. The application for reinstatement must be refused.
Consideration
The questions posed by Mr Byrt relate to three separate findings by the Senior Member, namely:
a)that the Deputy President’s decision on 27 November 2013 to dismiss the proceedings without offering the Applicant an opportunity to proceed with a hearing on the T-documents was not attended by “error” within the meaning of s.42A(10) of the AAT Act;
b)that the discretion to reinstate the proceedings under s.42A(10) of the AAT Act had not been enlivened; and
c)that the applicant was not denied an opportunity to present his case and there had not been a failure to afford procedural fairness in the decision to dismiss the proceedings without offering the applicant an opportunity to proceed with a hearing on the T-documents.
As I have sought to set out above, the questions of law said to arise in respect of each of those decisions have much in common. Some of Mr Byrt’s grounds might be disposed of immediately as they relate to each of the findings made by the Senior Member.
Mr Byrt argues that each of the decisions were not authorised by s.42A(10) of the Act. However, as to the first finding that the Deputy President’s decision to dismiss was not attended by error, the Senior Member was required to make a finding about the existence of error in the Deputy President’s decision before he could exercise the relevant discretion. In that sense, a decision that there was no error, even if that decision was erroneous, was authorised by the section.
Next, as to the second finding that the discretion to reinstate the proceedings had not been enlivened, the Senior Member’s determination that the decision to dismiss the proceedings was not attended by error within the meaning of s 42A(10) was a finding which thereafter robbed him of the discretion to reinstate Mr Byrt’s applications. Having made that determination, not only was the refusal of Mr Byrt’s application for reinstatement “authorised” by the section, it was obligatory.
Finally, as to the third finding by the Senior Member, that the applicant was not denied an opportunity to present his case and that there had not been a failure to afford procedural fairness in the decision to dismiss the proceedings without offering the applicant an opportunity to proceed with a hearing on the T-documents, that finding was a finding that led to the finding that there was no error on the part of the Deputy President. The finding was authorised by the section because it required the Senior Member to make a determination about that issue before he could move to an exercise of the discretion conferred by the section.
Insofar as Mr Byrt asserts that each of the findings I have just discussed were not authorised by s.42A(10) of the AAT his argument must fail.
Questions 1 and 3 suggest that a breach of the rules of natural justice occurred in connection with the making of the decisions to which each of those questions relates. However, in argument, Mr Byrt does not contend that there was a breach of the rules of natural justice in the making of the decision by Senior Member McCabe. No complaint is made about the way in which the Senior Member conducted the hearing of the reinstatement application. It is likely that the reference in the questions of law (as framed by the applicant) to a breach of the rules of natural justice is intended to pick up the reference to that phrase in The Taxpayer and Commissioner of Taxation (above). But that is relevant to the hearing before the Deputy President, not the Senior Member. Nothing identified before me by Mr Byrt would lead to the conclusion that there was a want of procedural fairness in the proceedings conducted before the Senior Member.
The third common question which might be disposed of shortly is Mr Byrt’s contention that each of the findings set out above were an improper exercise of the power conferred by s.42A(10) of the AAT Act because the Senior Member failed to take relevant considerations into account in the exercise of the power. The relevant considerations were not identified by Mr Byrt. To the extent that Mr Byrt suggests by this ground that the Senior Member did not take into account the failure of the Deputy President to alert Mr Byrt to the possibility of proceeding on his applications on the T-documents alone, the Senior Member took that matter into consideration. He did so when he determined that there was no error in the Deputy President’s decision to dismiss the proceedings. It is not the case that the Senior Member did not take it into account. He took it into account in the only way that was possible under s.42A(10).
Finally, Mr Byrt contends that each of the decisions that I have identified above involve an improper exercise of the power conferred by s.42A(10) of the AAT Act because the exercise of the power was so unreasonable that no reasonable person could have so exercised the power. The difficulty with this question for Mr Byrt is that the Senior Member did not exercise the power conferred by s.42A(10) of the AAT Act. By reason of his determination that there was no error attending the dismissal of the proceedings by the Deputy President, the occasion for the exercise of the power did not arise. No question of unreasonableness can arise in the circumstances.
That leaves Mr Byrt’s contention that each of the Senior Member’s findings was, or was affected by, an error of law. He contends that the error was that the Senior Member did not recognise that in circumstances where the Deputy President could have offered Mr Byrt a hearing on the T-documents instead of dismissing his applications, his determination to dismiss the proceedings without first offering him that opportunity was in error. Put another way, and framed as a question of law: Whenever the Tribunal is considering exercising the power conferred upon it by s.42A(5) of the AAT Act, must the Tribunal offer the applicant a hearing on the T-documents alone before dismissing the proceedings? Having stated the question of law in that way, one might expect to see in the Notice of Appeal the grounds of appeal connect that question to the facts and circumstance of the case at hand and the relief sought by the applicant.
Dealing with the question of law, in my view, the answer to that question must be “No”. Section s.42A(5) of the AAT Act is in the following terms:
42A Discontinuance, dismissal, reinstatement etc. of application
(5) If an applicant for a review of a decision fails within a reasonable time:
(a) to proceed with the application; or
(b) to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.
In my view, before it can be said that Mr Byrt’s proceedings were dismissed in error by the Deputy President, Mr Byrt must show that either, as a matter of law the Deputy President was obliged to offer Mr Byrt the opportunity of a hearing on the T-documents alone, or on the facts of the case it was necessary for him to offer that opportunity.
Plainly, the section requires one of two alternative preconditions to exist before an exercise of the power conferred by it can take place. Neither of those preconditions includes a requirement that the Tribunal offer to an applicant a hearing on the T-documents alone before it moves to dismiss the application. Further, the power conferred by the section is unfettered once it is engaged. No doubt the discretion conferred by the section must be exercised according to the circumstances of the case at hand and cannot be exercised capriciously or arbitrarily. But otherwise, it is unfettered. As a matter of law the Tribunal is not obliged to offer an applicant a hearing on the T-documents alone before it moves to dismiss an application pursuant to s.42A(10) of the AAT Act.
Nor was it necessary on the facts of this case for the Deputy President to offer Mr Byrt the T-document alone hearing. Mr Byrt relies upon The Taxpayer and Commissioner of Taxation (above) to demonstrate that the Tribunal must offer an applicant the opportunity for a hearing on the T-documents alone before it moves to dismiss the application. However that case is distinguishable on its facts. In that case there was “an indication that the applicant might have been prepared to rely on the documents then before me, being the T documents”. There was no such indication before the Deputy President in this case.
Accordingly, the Senior Member’s decisions that:
a)the Deputy President’s decision on 27 November 2013 to dismiss the proceedings without offering the Applicant an opportunity to proceed with a hearing on the T-documents was not made in “error” within the meaning of s.42A(10) of the AAT Act;
b)the discretion to reinstate the proceedings under s.42A(10) of the AAT Act had not been enlivened; and
c)the applicant was not denied an opportunity to present his case and there had not been a failure to afford procedural fairness in the decision to dismiss the proceedings without offering the applicant an opportunity to proceed with a hearing on the T-documents.
were not, or were not affected by, an error of law.
Conclusion
Mr Byrt’s appeal must fail. The amended notice of appeal filed on 7 April, 2014 must be dismissed with costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 26 June 2015
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