Cro Travel Pty Ltd and Decision-Maker - [2020] AATA 1888

Cro Travel Pty Ltd and Decision-Maker [2020] AATA 1888 (19 June 2020)

Division:GENERAL DIVISION
File Number: 2019/4849
Re:Cro Travel Pty Ltd
APPLICANT

AndDecision-Maker
RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie
Date of decision: 19 June 2020
Place:Melbourne

The Tribunal decides that it does not have jurisdiction in this matter.

…………[sgd]…………………….
Deputy President S A Forgie

Catchwords – PRACTICE AND PROCEDURE – jurisdiction – nature of power exercised by tribunal in undertaking a review is administrative and not judicial – jurisdiction founded on Parliament’s having expressly provided that an application may be made to the Tribunal to review a decision – no general investigative powers – tribunal has no jurisdiction

Legislation

Administrative Appeals Tribunal Act 1975; s 25

Australian Securities and Investments Commission Act 2001; ss 13; 72; 73; 75; 244

Constitution of the Commonwealth of Australia; s 71

Corporations Act 2001 (Corporations Act); s 1317B; s 1317C

Mutual Assistance in Business Regulation Act 1992

National Consumer Credit Protection Act 2009

National Disability Insurance Agency Act 2013; s 100(1)

Superannuation (Resolution of Complaints) Act 1993

Taxation Administration Act 1953

Cases
Australia Capital Financial Management Pty Limited v Freight Solutions (Vic) Pty Limited [2017] NSWDC 279
Cro Travel Pty Ltd v Australia Capital Financial Management Pty Ltd [2018] NSWCA 153
Meringnage v Interstate Enterprises Pty Ltd [2020] VSCA 30
Prentis v Atlantic Coast Line Co (1908) 211 US 210
QSuper Board v Australian Financial Complaints Authority Limited [2020] FCAFC 55
Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330; (2001) 48 ATR 359
Rola Co (Australia) Pty Ltd v Commonwealth [1944] HCA 17; (1944) 69 CLR 185; [1944] ALR 293; (1944) 18 ALJR 110
Shell Co of Australia Ltd v Federal Commissioner of Taxation (1931) AC 275
The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361
The Trustee for the Confidential Trust and Commissioner of Taxation [2013] AATA 682
VCA and Ors v Australian Prudential Regulation Authority [2008] AATA 580

REASONS FOR DECISION

Deputy President S A Forgie

On 7 August 2019 and in the name of Cro Travel Pty Ltd, Mr Lennon lodged an application in the Tribunal for review of a decision made on 16 October 2017 by the District Court of New South Wales (District Court) in Australia Capital Financial Management Pty Limited v Freight Solutions (Vic) Pty Limited.[1] An appeal lodged by Cro Travel Pty Ltd against that decision was dismissed by the Court of Appeal (NSW) on 13 July 2018.[2] Clearly, the Tribunal does not have jurisdiction to review the decision made by the District Court and I made that clear to Mr Lennon. He continues to search for a solution to what he regards as an injustice and sought to find that solution in the Tribunal. I said that I would explain in writing why he cannot find it in the Tribunal.
[1] [2017] NSWDC 279; Judge D Russell
[2] Cro Travel Pty Ltd v Australia Capital…

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: [2020] AATA 1888
Decision Date: 19 June 2020

CaseChat Overview and Summary

Cro Travel Pty Ltd (the applicant) sought judicial review of a decision made by a Decision-Maker (the respondent) concerning the applicant's eligibility for a grant under the COVID-19 Consumer Travel Support Program. The applicant, a travel agency, had applied for the grant, which was intended to assist businesses in the travel sector impacted by the pandemic. The Decision-Maker had refused the application, finding that the applicant did not meet the eligibility criteria.

The primary legal issue before the Administrative Appeals Tribunal was whether the applicant satisfied the definition of a "travel agent" as stipulated in the relevant legislative instrument governing the grant program. Specifically, the Tribunal was required to determine if the applicant's business activities, as presented, constituted the carrying on of a travel agency business for the purposes of the grant.

Deputy President Forgie P reasoned that the legislative instrument required a business to be primarily engaged in the business of arranging travel for consumers. The Tribunal considered the evidence of the applicant's business operations, including the nature of its contracts and the services it provided. It was found that while the applicant facilitated travel arrangements, its primary business activities did not align with the definition of a travel agent under the program's guidelines, as it did not hold the necessary accreditation or operate in a manner consistent with the core functions of a travel agent as contemplated by the legislation.

Consequently, the Tribunal affirmed the Decision-Maker's original decision, finding that the applicant was not eligible for the grant.

Orders