Clifford v Tax Practitioners Board - [2023] FCA 1256

FEDERAL COURT OF AUSTRALIA
Clifford v Tax Practitioners Board [2023] FCA 1256

File number: QUD 341 of 2023

Judgment of: LOGAN J

Date of judgment: 18 August 2023

Catchwords:
TAXATION – application for interlocutory relief to stay a decision by the Administrative Appeals Tribunal (Tribunal) to terminate the applicant’s registration as a tax agent and prohibit the applicant from applying for registration as a tax agent for 18 months – where immediately prior to the Tribunal’s decision there was a stay in force pending the hearing and determination of the applicant’s review application – where s 43(5C) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that where the Tribunal has made an order staying the decision under review and the order was in force immediately before the decision given by the Tribunal under review, then the operation of the Tribunal’s decision is stayed until the end of the appeal period or until any under s 44 of the AAT Act appeal is determined by the Federal Court of Australia – consequentially the Court need not determine the interlocutory application by reason of the operation of s 43(5C) of the AAT Act – application dismissed

PROFESSIONS AND TRADES – Taxation Agent – application for interlocutory relief to stay a decision by the Tribunal to terminate the applicant’s registration as a tax agent and prohibit the applicant from applying for registration as a tax agent for 18 months – where immediately prior to the Tribunal’s decision there was a stay in force pending the hearing and determination of the applicant’s review application – where s 43(5C) of the AAT Act provides that where the Tribunal has made an order staying the decision under review and the order was in force immediately before the decision given by the Tribunal under review, then the operation of the Tribunal’s decision is stayed until the end of the appeal period or until any under s 44 of the AAT Act appeal is determined by the Federal Court of Australia – consequentially the Court need not determine the interlocutory application by reason of the operation of s 43(5C) of the AAT Act – application dismissed

ADMINISTRATIVE LAW – Administrative Appeals Tribunal – appeal under s 44 of the AAT Act from decision of Tribunal – stay application of decision of Tribunal - application for interlocutory relief to stay a decision by the Tribunal to terminate the applicant’s registration as a tax agent and prohibit the applicant from applying for registration as a tax agent for 18 months – where immediately prior to the Tribunal’s decision there was a stay in force pending the hearing and determination of the applicant’s review application – where s 43(5C) of the AAT Act provides that where the Tribunal has made an order staying the decision under review and the order was in force immediately before the decision given by the Tribunal under review, then the operation of the Tribunal’s decision is stayed until the end of the appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FCA 1256
Decision Date: 18 August 2023

CaseChat Overview and Summary

In the case of Clifford v Tax Practitioners Board, the applicant, Ms Clifford, sought interlocutory relief to stay a decision by the Administrative Appeals Tribunal (AAT) to terminate her registration as a tax agent and prohibit her from applying for registration for 18 months. The application was heard by a duty judge in the Federal Court of Australia. The case centred on whether the operation of the AAT's decision could be stayed pending the outcome of the applicant's review application under section 43(5C) of the Administrative Appeals Tribunal Act 1975 (Cth). The central legal issue was whether the operation of the AAT's decision to terminate Ms Clifford's registration could be stayed until the appeal was determined, given that there had been a prior stay in force.

The court considered the statutory provisions under section 43(5C) of the AAT Act, which provides that if the AAT had made an order staying the operation or implementation of the decision under review and that order was in force immediately before the AAT gave its decision, then the operation of the AAT's decision is stayed until the end of the appeal period or until the appeal is determined by the Federal Court. The court found that the conditions of section 43(5C) were satisfied. The Tribunal had indeed made an order staying the operation of the Board's decision, and that stay was in force immediately before the Tribunal's decision on the review. Consequently, the court concluded that the interlocutory application was redundant and dismissed it. The court also set out a timetable for the appeal, including the filing of the appeal book and outlines of submissions by both parties, and ordered that the proceeding be transferred to the Victorian District Registry of the Court.

The court's reasoning was that the AAT's decision, having affirmed the Board's decision subject to variations, rendered the original decision by the Board redundant for the purposes of the interlocutory application. Given that the conditions of section 43(5C) were met, the court held that the operation of the AAT's decision was automatically stayed until the appeal was determined. Consequently, the court dismissed the interlocutory application and set out a timetable for the appeal proceedings, including the filing of the appeal book and outlines of submissions by both parties. The court also ordered that the proceeding be transferred to the Victorian District Registry of the Court.

Orders

Orders of the court

Interlocutory application

1. The interlocutory application for a stay be dismissed.

Timetable leading to hearing of appeal

2. The applicant file and serve an appeal book comprising the material before the Tribunal on the hearing of the review, the reasons of the Tribunal, the Tribunal’s decision and the notice of appeal by close of business on 31 August 2023.

3. In the event of disagreement between the parties as to the contents of the appeal book, the contents of that book be settled by a Registrar.

4. The applicant file and serve an outline of submissions in respect of the appeal of not more than 10 pages by 4pm on 22 September 2023.

5. The respondent file and serve an outline of submissions in respect of the appeal of not more than 10 pages by 4pm on 9 October 2023.

6. The appeal be listed for hearing on the basis of an estimate of half-a-day on a date after 12 October 2023, to be fixed by the docket judge after consultation with the parties.

Transfer to Victorian District Registry

7. The proceeding be transferred to the Victorian District Registry of the Court.

Liberty to apply and Costs

8. There be liberty to apply.

9. Costs be reserved.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The proceeding has come on before me as duty judge. Upon the hearing this morning, I was helpfully referred by Mr A Cunynghame of counsel to s 43(5C) of the AAT Act, which provides:43 Tribunal’s decision on review…(5C) Despite subsections (5A) and (5B), if:(a)the Tribunal has made an order under subsection 41(2) staying the operation or implementation of the decision under review; and(b)the order was in force immediately before the decision given by the Tribunal on the review;then, unless the Tribunal, the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2) otherwise orders, the operation or implementation of the Tribunal's decision is stayed until:(c)subject to paragraph (d), the end of the period within which a party to the proceeding before the Tribunal may appeal from the decision to the Federal Court of Australia under subsection 44(1) (including any further time for bringing the appeal that is allowed by the Federal Court before the end of that period); or(d)if such an appeal is brought--the appeal is determined. The Board had, shortly prior to the hearing this morning, promoted, along with those acting for Ms Clifford, by consent, orders which would have provided for a later hearing of the interlocutory application. However, upon being taken to s 43(5C), I raised, first with Mr Cunynghame for the Board and then with Mr Morgan of counsel for Ms Clifford, whether, in light of the language employed in that subsection, the interlocutory application was redundant. Upon reflection, Mr Cunynghame submitted that it was. Mr Morgan was, with respect, understandably cautious, wishing to preserve the subject matter of the appeal. However, upon exploring the elements of s 43(5C), it does seem to me that there is no work for the orders proposed in the interlocutory injunction to do. A starting premise is that the decision of the Board of 9 August 2022 has been wholly replaced by the Tribunal’s decision of 14 July 2023. I say that because the very nature of the jurisdiction conferred on the Tribunal is to stand in the shoes of the original decision-maker and to confirm, vary or set aside upon a complete review afresh on the merits of the decision under review. Here, there has not been a complete replication of the decision under review, and, in any event, even if there were, it would be the Tribunal’s affirmation of that earlier decision that would become the operative administrative decision. As it is, the Tribunal has, as indicated, affirmed the decision subject to particular variations. Thus, as to so much of the interlocutory application as seeks to stay the Board’s original decision, it is unnecessary because that decision has been overtaken completely by the Tribunal’s decision. As to the stay of the Tribunal’s decision, and working through the elements of s 43(5C) of the AAT Act, paragraph (a) of that subsection is satisfied, because the Tribunal did make an order under s 41(2) staying the operation or implementation of the Board’s decision. Paragraph (b) is satisfied, because that stay order, which was expressed to run until the determination of the review application, was in force immediately before the decision given by the Tribunal on the review. The Board has not, at least at present, sought an order to the contrary as to a stay; neither has the Tribunal made any order revoking the stay.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	QUD 341 of 2023
Judgment of:	LOGAN J
Date of judgment:	18 August 2023
Catchwords:	TAXATION – application for interlocutory relief to stay a decision by the Administrative Appeals Tribunal (Tribunal) to terminate the applicant’s registration as a tax agent and prohibit the applicant from applying for registration as a tax agent for 18 months – where immediately prior to the Tribunal’s decision there was a stay in force pending the hearing and determination of the applicant’s review application – where s 43(5C) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that where the Tribunal has made an order staying the decision under review and the order was in force immediately before the decision given by the Tribunal under review, then the operation of the Tribunal’s decision is stayed until the end of the appeal period or until any under s 44 of the AAT Act appeal is determined by the Federal Court of Australia – consequentially the Court need not determine the interlocutory application by reason of the operation of s 43(5C) of the AAT Act – application dismissed PROFESSIONS AND TRADES – Taxation Agent – application for interlocutory relief to stay a decision by the Tribunal to terminate the applicant’s registration as a tax agent and prohibit the applicant from applying for registration as a tax agent for 18 months – where immediately prior to the Tribunal’s decision there was a stay in force pending the hearing and determination of the applicant’s review application – where s 43(5C) of the AAT Act provides that where the Tribunal has made an order staying the decision under review and the order was in force immediately before the decision given by the Tribunal under review, then the operation of the Tribunal’s decision is stayed until the end of the appeal period or until any under s 44 of the AAT Act appeal is determined by the Federal Court of Australia – consequentially the Court need not determine the interlocutory application by reason of the operation of s 43(5C) of the AAT Act – application dismissed ADMINISTRATIVE LAW – Administrative Appeals Tribunal – appeal under s 44 of the AAT Act from decision of Tribunal – stay application of decision of Tribunal - application for interlocutory relief to stay a decision by the Tribunal to terminate the applicant’s registration as a tax agent and prohibit the applicant from applying for registration as a tax agent for 18 months – where immediately prior to the Tribunal’s decision there was a stay in force pending the hearing and determination of the applicant’s review application – where s 43(5C) of the AAT Act provides that where the Tribunal has made an order staying the decision under review and the order was in force immediately before the decision given by the Tribunal under review, then the operation of the Tribunal’s decision is stayed until the end of the appeal…