Detail First Pty Ltd v Chief Commissioner of State Revenue

[2018] NSWCATAD 104

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Detail First Pty Ltd v Chief Commissioner of State Revenue [2018] NSWCATAD 104

Hearing dates:

On the papers

Date of orders:

23 May 2018

Decision date:

23 May 2018

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Boxall, Senior Member

Decision:

(1) The application is dismissed

Catchwords:

ADMINISTRATIVE LAW - Payroll Tax Rebate Scheme (Jobs Action Plan) Act 2011 – refusal of registration – availability of objection – availability of administrative review

Legislation Cited:

Administrative Decisions Review Act 1987, ss 7, 8, 9
Civil and Administrative Tribunal Act 2013, s 7, 28, 29, 30
Payroll Tax Rebate Scheme (Jobs Action Plan) Act 2011, ss 19, 35, 41

Category:

Principal judgment

Parties:

Detail First Pty Ltd (Applicant)
Chief Commissioner of State Revenue (Respondent)

Representation:

Counsel:
I Bose (Respondent)

 

Solicitors:
NSW Crown Solicitors Office (Respondent)

  D Cunningham (Applicant)

File Number(s):

2017/00383546

reasons for decision

Background

1. The Applicant is a company whose principal place of business is in Tasmania. It provides cleaning services, and in the course of doing so employs staff in several states and territories including New South Wales. On 14 October 2015 Revenue NSW (formerly known as “NSW Office of State Revenue”) began an investigation to determine whether the Applicant was liable for payroll tax in New South Wales. That investigation was completed in February 2016, and on 25 February 2016 the Respondent issued to the Applicant Payroll Tax Assessment Notices for the 2013, 2014, 2015 and 2016 tax years. In connection with the issue of these assessments the Applicant became registered for payroll tax purposes with effect from 1 October 2013 onwards.

2. During the investigation there were discussions and written communications between the parties concerning the potential availability to the Applicant of a rebate of payroll tax through the scheme (the JAP Rebate Scheme) established under the Payroll Tax Rebate Scheme (Jobs Action Plan) Act 2011 (the JAPRebate Act) for the calculation and payment to employers on an annual basis of rebates of payroll tax in relation to new jobs created by them. These discussions culminated in a formal request on 27 May 2016 by the Applicant for registration under the JAP Rebate Scheme and the rejection of that request by the Respondent on 30 May 2016. It should be noted at this point that the substantive questions raised by the Applicant go amongst other matters to the significance, in the context of the Applicant’s ability to participate in the JAP Rebate Scheme, of the discussions and written communications between the parties before 27 May 2016. This brief background summary should not be taken as adopting or implying any particular conclusion as to those substantive questions.

3. On 2 November 2016 the Applicant lodged with the Respondent an objection to certain elements of the Respondent’s decisions concerning the Applicant’s payroll tax liabilities. They were:

1. the calculation of the Applicant’s payroll tax threshold for the 2014 tax year;

2. the value of interstate wages included in assessing the Applicant’s liability to payroll tax in the 2014, 2015 and 2016 tax years;

3. the Respondent’s imposition of 20% penalty tax for the 2014 and 2015 tax years; and

4. the Respondent’s decision to refuse the Applicant retrospective registration under the JAP Rebate Scheme for the 2014 and 2015 tax years.

4. On 22 November 2017 the Respondent replied to the Applicant with its decision on the objection. In its reply, the Respondent:

1. partially allowed the first element of the objection, and accepted that an adjustment of the value of interstate wages was appropriate, and issued revised assessments;

2. disallowed the objection to the imposition of penalty tax; and

3. rejected the objection (using this word in its general meaning) concerning the JAP Rebate Scheme, on the basis that the relevant decision was not one in respect of which an objection (in the statutory sense) could be made under the JAP Rebate Act.

5. On 19 December 2017 the Applicant applied to the Tribunal for the review of the Respondent’s decision to refuse the Applicant retrospective registration under the JAP Rebate Scheme for the 2014 and 2015 tax years.

Procedural history

6. The matter was listed for directions on 23 January 2018, when it was adjourned until 6 February 2018 to allow the parties to produce the decision the subject of the review and the application made by the Applicant to which that decision related. The Respondent foreshadowed at this time that it intended to raise a preliminary question of jurisdiction.

7. At the adjourned directions hearing on 6 February 2018 the Tribunal made certain orders for the parties to file and serve their respective submissions on the jurisdictional question.

8. They have done so, and the purpose of these reasons is to set out the Tribunal’s decision on the issue, and its reasons for reaching that conclusion.

The parties’ submissions

9. The Respondent’s submissions in relation to jurisdiction are in summary as follows:

1. under s 35(1) of the JAP Rebate Act objections may be lodged only in respect of four types of decision under that Act.

2. these are, in the words of that section:

“(a) a decision on the person's claim for a rebate (including a decision to vary or reverse an earlier decision made independently of an objection under this Act),

(b) a decision to require the person to repay an amount paid by way of rebate under this Act,

(c) a decision to require the person to pay a penalty under this Act,

(d) a decision to require the person to pay interest on an amount unpaid under this Act.”]

3. the decision in question is one not to allow the retrospective registration of the Applicant under s 19 of the JAP Rebate Act as a claimant in respect of the employment of certain persons in certain positions.

4. a decision of that kind does not fall into any of the four categories of decision set out in s 35(1) of the JAP Rebate Act in respect of which objections may be made.

5. the Respondent could not, therefore, make a determination in response to that element of the Applicant’s objection (in the non-technical sense), because there was simply no legally operative objection (in the statutory sense) for it to determine.

6. in consequence, the Tribunal’s jurisdiction under s 41 of the JAP Rebate Act to review the decision to which the relevant element of the objection (in the non-technical sense) was made has not been enlivened.

10. The Applicant’s submissions focussed on its substantive concerns with the decision and did not address the jurisdictional issue.

Consideration

11. The Tribunal’s view is that it does not have jurisdiction to undertake the review requested by the Applicant, and accordingly dismisses the Applicant’s application for review.

12. The starting point lies in the Act of the New South Wales Parliament under which the Tribunal is created. This is the Civil and Administrative Tribunal Act 2013, which in s 7 establishes the Tribunal. Section 28(1) provides that the Tribunal so established “… has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation …”. The Tribunal is purely a creation of statute and cannot have any jurisdiction or functions beyond those conferred on it under applicable New South Wales legislation. If the Applicant’s application is one in respect of which legislation confers jurisdiction on the Tribunal, then it is one which the Tribunal may determine; if it is not, then the Tribunal has no right or authority to do so.

13. The next relevant provisions are ss 28(2) and 29, which:

1. in s 28(2) divide the Tribunal’s jurisdiction into four streams: general, administrative review, appellate and enforcement; the Tribunal’s appellate and enforcement jurisdictions are not relevant here; and

2. in s 29(1) provide for the distribution of matters between the Tribunal’s general, administrative review, appellate and enforcement jurisdictions according to a simple principle: if legislation confers on the Tribunal jurisdiction concerning a topic, then decisions on that topic come within the Tribunal’s general jurisdiction unless allocated by legislation to any of the other three jurisdictions.

14. Section 30 then comes into play. It recognises that the extent of the Tribunal’s administrative review jurisdiction is determined by reference to the Administrative Decisions Review Act 1987.

15. That Act provides relevantly as follows:

1. in s 4(1), that “enabling legislation” means “… legislation (other than this Act or any statutory rules under this Act) that …. Provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or …. Otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters ...”;

2. in s 9(1), that the Tribunal “… has ‘administrative review jurisdiction’ over a decision of class of decisions of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decisions (or class of decisions) made by the administrator …”;

3. in s 8(1), that an “administrator” is ”…. in relation to an administratively reviewable decision, …. the person or body that makes (or is taken to have made) the decision under enabling legislation”;

4. In s 7(1), that an “administratively reviewable decision” is “… a decision of an administrator over which the Tribunal has administrative review jurisdiction”, all of which leads back to section 9(1).

16. Section 9(2) of the Administrative Decisions Review Act 1987 makes it clear that if the Tribunal’s jurisdiction is conferred by enabling legislation subject to certain conditions, it has jurisdiction only if those conditions are satisfied.

17. The net effect of this somewhat circular set of provisions is that, if enabling legislation (being legislation other than the Administrative Decisions Review Act 1987 itself or any statutory rules made under it) provides for the Tribunal to review particular decisions or classes of decisions made by administrators, then the Tribunal has jurisdiction to do so in its administrative review jurisdiction, subject to the satisfaction of any conditions specified in the relevant enabling legislation.

18. In the present case the relevant enabling legislation is the JAP Rebate Act, which in s 41 allows an “objector” to apply to the Tribunal for:

“… an administrative review under the Administrative Decisions Review Act 1997 of the decision (the "original decision") to which the objection was made if:

(a) the objector is dissatisfied with the Chief Commissioner's determination of the objection, or

(b) 90 days have passed since the objection was lodged with the Chief Commissioner and the Chief Commissioner has not determined the objection”.

19. The word “objector” is undefined, but coming as it does immediately after ss 35 to 40, which deal with objections and consistently use the word to identify a claimant for a rebate who has lodged an objection under s 35, it clearly has the same meaning in s 41.

20. The administrative review jurisdiction which the JAP Rebate Act confers on the Tribunal can only be engaged:

1. by a person who has lodged an objection under section 35, because only such a person is an “objector” for purposes of section 41; and

2. if either of the following conditions are satisfied:

1. the objector is dissatisfied with the Respondent’s determination of the objection: s 41(1)(a); or

2. the Respondent has not determined the objection within 90 days: s 41(1)(b).

21. Section 41 therefore clearly predicates, in two ways, the making of an objection under s 35 before an administrative review can be applied for.

22. In the present case, however, the Applicant has not made an “objection” within the meaning of s 35. Undoubtedly the Applicant objects, in a non-technical sense, to the Respondent’s decision concerning its registration under the JAP Rebate Scheme and communicated its views on the decision to the Respondent no later than 2 November 2016. Whatever formal status that communication may have had in relation to the other matters with which it dealt, it was not an “objection” within the meaning of s 35, since:

1. an objection under that section can only deal with one or more of the four categories of issue listed in s 35(1); and

2. a decision not to register retrospectively the applicant as a claimant under JAP Rebate Act was not covered by any of those four categories; this was for two reasons:

1. it was clearly not a decision contemplated by any of ss 35(1)(b) (decisions to require the repayment of a rebate), 35(1)(c) (decisions to require the payment of penalties) or 35(1)(d) (decisions require the payment of interest on amounts owing to the Respondent under the JAP Rebate Act); and

2. it was not a decision under s 35(1)(a) “.. on [the Applicant’s] claim for a rebate …”. The Respondent’s decision not to register the Applicant was a decision about registration. It was not (and necessarily could not have been) not a decision about a claim, since under section 18 of the JAP Rebate Act registration as a claimant is a precondition to making a claim. These reasons expand on this conclusion below.

23. It is true that the Respondent’s decision to refuse registration had the indirect consequence of preventing the Applicant from making a claim for a rebate, since until registered as a claimant for purposes of the JAP Rebate Scheme, a person is not authorised under the JAP Rebate Act to claim a rebate: ss 18 and 22(2), However, ss 23 to 28 of the JAP Rebate Act require the Respondent to undertake a process of assessing and deciding on claims which is quite distinct from its decision under s 19 to register (or not) an employer as a claimant. The language of s 35(1)(a) (which refers to “… a decision on [a] person’s claim for a rebate”) is, in the Tribunal’s view, a direct reference of that in s 23, which requires the Respondent “.. to decide whether a rebate is payable in respect of a claim and the amount of the rebate payable”, so that s 35(1)(a) is properly read as limiting the right to object to decisions made by the Respondent in the process of assessing and deciding claims which it is statutorily obliged to undertake.

24. Since there was no “objection” in the statutory sense which was (or could have been) made by the Applicant in relation to the Respondent’s registration decision, it follows that the Tribunal’s jurisdiction to undertake an administrative review under s 41 of the JAP Rebate Act has not been enlivened, since:

1. the review process under s 41 is only available to an “objector”, and for the reasons outlined above the since the Applicant’s request to the Respondent to reconsider its decisions not to register the Applicant could not have been an “objection” in the statutory meaning, the Applicant could not have been an “objector” for purposes of s 41; and

2. the review process under s 41 is limited to a review .. of the decision …. to which the objection was made ….”. The decision to refuse registration to the Applicant was a decision, but in view of s 35 could not have been one to which an objection (in the statutory meaning) was made. The review process cannot, therefore, be available to review the registration decision, and the application must be dismissed accordingly.

25. There are two further observations to be made:

1. this decision relates only to the availability of administrative review under section 41 of the JAP Rebate Act. It does not concern any other remedies which the Applicant may have, whether at general law or under statute, to seek the review of the Respondent’s registration decision.

2. s 30(2) of the Civil and Administrative Tribunal Act 2013 confers on the Tribunal, in addition to the administrative review jurisdiction specifically conferred by the Administrative Decisions Review Act 1987 and the JAP Rebate Act as enabling legislation, jurisdiction “… to make ancillary and interlocutory decisions …”. This, in the Tribunal’s view, is an authority which is conferred in order to allow it to better manage the process and conduct of an administrative review which it is authorised to undertake, but is not one which allows it to extend the categories of substantive decisions of which it may undertake administrative reviews. It does not operate to allow the inclusion within the review process of precursor or linked decisions to those which it is authorised to review.

Orders

26. For the above reasons, the Tribunal having no jurisdiction, the application is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 23 May 2018