Garrett and Other
[2020] AATA 1726
•9 June 2020
Garrett and Other [2020] AATA 1726 (9 June 2020)
Division:GENERAL DIVISION
File Number(s): 2020/2279, 2020/2281, 2020/2285, 2020/2286, 2020/2288, 2020/2369, 2020/2370, 2020/2409, 2020/2410, 2020/2411, 2020/2413, 2020/2414, 2020/2416, 2020/2417, 2020/2435, 2020/2436, 2020/2437, 2020/2446
Re:Andrew Morton Garrett
APPLICANT
AndOther
RESPONDENT
DECISION
Tribunal:Deputy President Britten-Jones
Date:9 June 2020
Place:Adelaide
The Tribunal dismisses the applications under s 42A(4)
.............[Sgnd]...................................
Deputy President Britten-Jones
CATCHWORDS
practice and procedure – bias - apprehended bias – conflict of interest - pecuniary interest – recusal - no jurisdiction – decision made under a Commonwealth enactment - freedom of Information - application for review of decisions relating to requests for access to documents – where no IC review application made – no jurisdiction to review decisions of which review sought – extension of time sought – extension of time dismissed - applications dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Human Rights Commission Act 1986 (Cth)
Corporations Act 2001 (Cth)
Freedom of Information Act 1982 (Cth)
Freedom of Information Act 1982 (Vic)
Freedom of Information Act 1991 (SA)
Income Tax Assessment Act 1997 (Cth)
Privacy Act 1988 (Cth)
Public Interest Disclosure Act 2013 (Cth)CASES
Attorney-General for the Commonwealth v The Queen; ex parte Boilermakers’ Society of Australia (1957) 95 CLR 529
Director-General of Social Services v Chaney (1980)
Ebner v The Official Trustee in Bankruptcy [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488
Re JRL; Ex parte CJL (1986) 161 CLR 342
Taylor and Secretary, Department of Social Security (1988) 18 FCR 322REASONS FOR DECISION
Deputy President Britten-Jones
9 June 2020
Since 20 April 2020 Andrew Garrett, or entities associated with him, have filed 71 separate applications for review with the Tribunal. It is apparent on the face of the vast majority of those applications that the Tribunal has no jurisdiction because they do not identify a Commonwealth enactment conferring jurisdiction or a Commonwealth decision-maker or, in some circumstances, any decision at all.
These reasons deal with 18 applications for review filed by Andrew Garrett in the period of 20 April to 28 April 2020 (“the applications”). Since that time Mr Garrett has filed a further 51 applications for review with the Tribunal, all of which have been dismissed in separate proceedings.
The applications were first listed for a hearing as to jurisdiction on 4 May 2020. On that day Mr Garrett, who appeared by telephone, applied for an adjournment on the basis that he wished to seek legal advice and was applying for legal funding. Mr Garrett indicated that four weeks would be sufficient time for the adjournment, and the matters were adjourned for a jurisdiction hearing on 4 June 2020. Mr Garrett requested that I recuse myself for apprehended bias. The recusal application was also listed for hearing on 4 June 2020.
At the 4 June 2020 hearing, Mr Garrett applied for a further adjournment because his application for legal funding had been refused and he was seeking to appeal that decision. I indicated that the matter had already been adjourned once to enable him time to obtain legal representation. I refused his application for a further adjournment, noting that Mr Garrett had been given sufficient time to prepare for the jurisdiction hearings and that he has in fact provided voluminous materials in support of the applications.
Mr Garrett informed the Tribunal that he was relying on material submitted by email to the Tribunal on 19 April, 30 April, 3 May, 20 May, 31 May, 2 June and 3 June 2020. The Tribunal had access to this material at the hearing and has taken it into account.
Mr Garrett contends that I should recuse myself on the basis of ‘the hopeless conflict of interest arising from the pecuniary interests of the Crown “in Globo” in matters related to me.’ Mr Garrett said that I am a public official paid by the Commonwealth and that I have a conflict of interest because his applications are directed towards the Commonwealth government. Mr Garrett did not initially identify anything of a personal nature in terms of the alleged conflict of interest. Indeed, Mr Garrett said that all Members of the Tribunal have the same conflict because of their pecuniary interest in being paid by the Commonwealth government. He said that any person who has ever been associated in any way with the Crown cannot hear the applications. On that basis, Mr Garrett has sought the appointment of another individual to hear his applications. He has also asked for the applications to be transferred to and heard by the Supreme Court of Hong Kong.
Mr Garrett asked me to confirm that I am not a Justice of the Federal Court and accordingly said that I could not determine the legal issues raised by his applications. He referred to the Boilermakers’ Case[1] which affirmed the separation of legislative and executive from judicial powers in Australia.
[1] Attorney-General for the Commonwealth v The Queen; ex parte Boilermakers’ Society of Australia (1957) 95 CLR 529.
Mr Garrett proceeded by making a submission of apprehended bias. During the course of the hearing Mr Garrett alleged actual bias but failed to make any coherent submissions in support of that allegation. I found it difficult at times to make sense of the submissions being made by Mr Garrett and any attempt I made to intervene to seek clarification was met with the response that I should not talk over him.
Consideration of the refusal application
A Tribunal member may be disqualified from hearing an application because of actual or apprehended bias. With respect to apprehended bias the test is whether a fair-minded lay observer might reasonably apprehend that the judge or Tribunal member might not bring an impartial mind to the resolution of the question in issue.[2] To establish apprehended bias first, it requires that the identification of what it is said might lead a judge or Tribunal member to decide a case other than on its legal and factual merits; and second, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.[3]
[2] Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 at [6].
[3] Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 at [8].
An allegation as to a reasonable apprehension of bias must be ‘firmly established’.[4]
[4] Re JRL; Ex parte CJL (1986) 161 CLR 342.
Mr Garrett referred to Johnson v Johnson,[5]where Kirby J summarised the authorities and principles with respect to the ‘fictitious bystander’ as follows:
[53] The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer … Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided … Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers … The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted … The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality … Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context … Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.
[5] (2000) 201 CLR 488 at [53].
When forming a view as to whether a reasonable bystander would have a reasonable apprehension of bias, any such reasonable bystander would be possessed of knowledge as to the independence of the Tribunal and the statutory obligation on Members to pursue the objectives set out in the Administrative Appeals Tribunal Act 1975 (Cth). These objectives provide a mechanism of review which is fair and just and which promotes public trust and confidence in the decision-making of the Tribunal.[6] A reasonable bystander would also be possessed of knowledge that the remuneration paid to a Member is in no way based upon the decisions made by the Member.
[6] Administrative Appeals Tribunal Act 1975 (Cth), s 2A.
Mr Garrett alleges an apprehension of bias because of a pecuniary interest said to arise because I derive my remuneration from the Commonwealth government. First, I would reject that I have any pecuniary interest in the outcome of any of Mr Garrett’s applications. Second, the alleged pecuniary interest or any alleged association ‘with the Crown’ gives rise to no conclusive inference of actual bias, nor to any conclusive inference that a well-informed lay person might reasonably apprehend bias. There can be no reasonable apprehension of bias when the outcome of Mr Garrett’s applications has no effect upon my remuneration. As to the alleged association ‘with the Crown’ no reasonable apprehension of bias arises because the Tribunal is an independent body whose Members have a statutory obligation to pursue the objective of providing a mechanism of review that is, inter alia, fair and just.
I refuse to recuse myself. I have no interest, pecuniary or otherwise, that conflicts with the issues raised in the applications. There is no basis for a fair-minded lay observer to reasonably apprehend that I would not bring an impartial mind to the applications.
The issue as to jurisdiction
To determine whether the Tribunal can review a decision there are three matters inherent in s 25(1) of the AAT Act that must be considered:
(a)does an enactment confer jurisdiction;
(b)has a decision been taken; and
(c)has that decision been taken under the enactment conferring jurisdiction?
In circumstances where the application for review lodged by Mr Garrett with the Tribunal has not disclosed any apparent reviewable decision, he was contacted by the registry of the Tribunal and given the opportunity of providing material to support his claim of jurisdiction. Mr Garrett has provided voluminous material in response. I will treat each application separately, but I note that some of the applications do not disclose a decision made by a Commonwealth body. For example, the Tribunal has no jurisdiction to review a decision made by a state government body. I also note that in some applications where a Commonwealth decision-maker has been identified, the Tribunal does not have jurisdiction because the legislation conferring jurisdiction requires an applicant to first seek reconsideration, or internal review, of the decision for example under the Freedom of Information Act 1982 and the Income Tax Assessment Act 1997.
The Federal Court has indicated the importance of identifying precisely the decision of which review is sought.[7] Every effort has been made to identify the decision sought to be reviewed by Mr Garrett. In the application for review which must be lodged with the Tribunal, the applicant is asked what type of decision they want reviewed and are requested to provide a copy of the decision. It is not always apparent from the documents provided by Mr Garrett what the decision is or that there is any decision at all.
[7] Taylor v Secretary, Department of Social Security (1988) 18 FCR 322 at 329.
I also note that in the majority of the application documents lodged with the Tribunal, Mr Garrett gives reasons for the application and in answer to the question as to why the decision is wrong, he writes that he relies upon the ‘Statement of grounds as exhibit AMG-1 and other exhibits AMG 2-7 to my letter dated 19 April 2020’ (“the AMG exhibits”). The AMG exhibits consist of over 2000 pages provided to the Tribunal in electronic format. Exhibit AMG-1 is a document filed in the New South Wales Registry of the Federal Court in the matter of NSD1848/2018 entitled ‘Statement of Grounds for common law judicial review and making of orders in the nature of “Quo Warranto” and/or “Habeas corpus” and/or “Prohibition” and/or “Mandamus” and/or “Certiorari”’ in which Mr Garrett seeks common law judicial review of all administrative decisions and judicial decisions related to him or associated entities. AMG-2 is a search warrant issued under the Crimes Act 1914. AMG-3 is a notice of constitutional matters filed in the same Federal Court matter as above. A further exhibit is the tender bundle of 243 pages filed in the same Federal Court matter, which includes a letter from the Victoria District Registry of the Federal Court to Mr Garrett referring to the order of Justice Pagone made on 26 February 2015 prohibiting Mr Garrett from instituting proceedings without leave and that no leave has been granted. A further exhibit is an interlocutory application filed in the criminal jurisdiction of the District Court of South Australia in DCCRM-19-73. AMG-6 is an index of documents served on the Reserve Bank of Australia. AMG-7 is a bundle of 1969 pages starting with a Notice of Seizure of Collateral described as page 1 of 1969. I am unable to discern the relevance of the AMG exhibits to the issues raised in the applications.
Mr Garrett was given the opportunity to make oral submissions with respect to the issue of jurisdiction at the hearing on 4 June 2020, but he refused to do so. Mr Garrett terminated the telephone hearing after making his submissions with respect to the recusal application and asserting that I should recuse myself and that I should take no further part in the applications. After Mr Garrett terminated the phone connection, the Tribunal made contact with him again by telephone at which time I offered him an opportunity to make submissions with respect to jurisdiction of the 18 applications listed for hearing. Mr Garrett refused to listen to me and refused to make any submissions because he considered that I should recuse myself.
I have decided to proceed to determine the issue as to jurisdiction of the applications before me. Mr Garrett has provided the Tribunal with voluminous documentation purportedly in relation to the issue of jurisdiction.
I will now turn my mind to each of the applications.
2020/2279
Mr Garrett refers to 10 decisions he wants reviewed as part of this application. He applies for an extension of time on the basis that no time limit applies and that the proceeding ought to be transferred to the High Court of Australia. In his reasons for the application he refers to the AMG exhibits. With respect to decisions 1, 2, 3 and 10 Mr Garrett provided letters from the Financial Assistance Section of the Commonwealth Attorney-General’s Department to Mr Garrett dated 12 June 2018 and 10 September 2018. These letters refer to his application for financial assistance under the ‘Public Interest Test Case Funding Scheme’ and advise that his application is incomplete and no further action will be taken. Mr Garrett has provided the relevant guidelines. These are not decisions taken under a Commonwealth enactment conferring jurisdiction on the Tribunal. The Tribunal has no jurisdiction to review these decisions.
With respect to decision 4 Mr Garrett provided a letter dated 3 May 2018 to him from the Office of Legal Services Coordination in the Commonwealth Attorney-General’s Department advising that it is not appropriate for the Attorney-General to intervene or influence private proceedings or proceedings that are being contemplated. This is not a decision taken under a Commonwealth enactment conferring jurisdiction on the Tribunal. The Tribunal has no jurisdiction to review this decision.
With respect to decision 5 Mr Garrett provided a letter from the Commonwealth Attorney-General’s Department to him dated 4 November 2019 refusing a freedom of information request and advising him of his review rights under the Freedom of Information Act 1982 (Cth) (“the FOI Act”), namely an application for internal review under s 54 of the FOI Act or an Information Commissioner review under s 54L of the FOI Act. Section 57A of the FOI Act provides that an application may be made to the Tribunal for review of certain decisions which do not include the decision made in the letter of 4 November 2019. Unless and until Mr Garrett seeks an internal review or an Information Commissioner review under the FOI Act, there is no reviewable decision.
With respect to decision 6 Mr Garrett provided a letter from the Courts, Tribunals and administrative law branch of the Commonwealth Attorney-General’s Department to him dated 30 June 2016 in which he is asked to provide information in relation to a purported application for compensation under the ‘Compensation for Detriment caused by Defective Administration Scheme’. The letter concludes by stating that the Attorney-General’s Department is unable to take any action in relation to his claim until he provides the specific information and the relevant evidence to support his application. This is not a decision taken under a Commonwealth enactment conferring jurisdiction on the Tribunal. The Tribunal has no jurisdiction to review this decision.
With respect to decision 7 Mr Garrett provided a letter from the office of the Commonwealth Attorney-General to him dated 9 August 2018 refusing his freedom of information request and advising that if dissatisfied with the decision he can apply for an Information Commissioner review of the decision under s 54L of the FOI Act. Unless and until Mr Garrett seeks an Information Commissioner review under the FOI Act there is no reviewable decision.
With respect to decision 8 Mr Garrett provided a letter from the Attorney-General’s Department to him dated 12 February 2020 regarding his freedom of information request and advising that the Department does not hold any documents within the scope of the request. The letter advises that if dissatisfied with the decision, Mr Garrett may apply for internal review or the Information Commissioner review of the decision. Unless and until he does so, there is no reviewable decision.
With respect to decision 9 Mr Garrett provided a letter from the Attorney-General’s Department to him dated 26 March 2018 advising that the Department is unable to provide the information requested and referring the correspondence to the Australian Taxation Office for response. This is not a decision reviewable by the Tribunal.
None of the decisions referred to in this particular application for review are decisions taken under a Commonwealth enactment which confers jurisdiction on the Tribunal. The application is dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”).
2020/2281
Mr Garrett lodged this application in the name of the Australian People Future Fund which is a discretionary investment trust of which Mr Garrett is the trustee. The decision is described in the application as a ‘deemed refusal by Christian Porter in respect to the requests set out in a letter from Steve Georganas MP to Mr Porter at my request dated 22.02.2020’. The reasons for the application referred to the AMG exhibits and say that the Attorney-General had no power to make the deemed decision or that the deemed decision is a nullity. The requests of Mr Garrett set out in the letter from Mr Georganas are of a political nature. I consider that this application does not disclose that a decision of any sort has been made. If there is a decision, it is not a decision taken under a Commonwealth enactment which confers jurisdiction on the tribunal. The application is dismissed under s 42A(4) of the AAT Act.
2020/2285
Mr Garrett seeks review with respect to a purported decision in a letter from the office of the Attorney-General of South Australia to Mr Garrett dated 3 March 2020. The Attorney-General’s letter refers to correspondence from Mr Garrett in which he requests that the Attorney-General provides certain information and assistance. The Attorney-General says that there is no further information or assistance that can be provided. This is not a decision taken under a Commonwealth enactment which confers jurisdiction on the Tribunal. The application is dismissed under s 42A(4) of the AAT Act.
2020/2286
Mr Garrett brings this application in the name of the Australian People Future Fund. He describes the decision as ‘on the 3rd July 2019 and 16th August 2019 I wrote to ASIC seeking reasons and internal review of decisions published by Ms Penney for ASIC dated 27th, 28th June 2019 and 5 August 2019.’ He seeks an extension of time within which to bring the application. In his reasons for the application he refers to the AMG exhibits and says that ASIC had no power to make all decisions related to him between 2002 and today’s date. The decision is evidenced by a letter from ASIC to Mr Garrett dated 5 August 2019 refusing to register documents in accordance with s 1274(8) of the Corporations Act 2001 (Cth). The documents are notifications that Mr Garrett has been appointed controller over the Reserve Bank of Australia, Westpac Banking Corporation, Commonwealth Bank Australia and Australia and New Zealand Banking Group Limited.
The Corporations Act does not confer jurisdiction on the Tribunal with respect to the decision of ASIC to refuse to register the documents referred to above. The application is dismissed under s 42A(4) of the AAT Act. The application for an extension of time is refused.
2020/2288
Mr Garrett brings this application in the name of the Australian People Future Fund. He seeks an extension of time within which to bring the application. In his reasons for the application he refers to the AMG exhibits. The decision is evidenced by a letter from the Commonwealth Ombudsman to Mr Garrett dated 12 September 2018 refusing a request for a determination under s 70 of the Public Interest Disclosure Act 2013 (Cth). The letter advises that if dissatisfied with the assessment, Mr Garrett may request a reconsideration of the decision. By letter dated 1 October 2018 to Mr Garrett, the Commonwealth Ombudsman reconsidered the decision and decides that she is not able to exercise her discretion to deem Mr Garrett to be a public official under s70 of the Public Interest Disclosure Act 2013 (Cth). The decision of the Commonwealth Ombudsman is not a decision taken under a Commonwealth enactment which confers jurisdiction on the Tribunal. The application for an extension of time under s29 (7) is dismissed. The application for review is dismissed under s 42A(4) of the AAT Act.
2020/2369
Mr Garrett brings this application for review in the name of OenoViva Capital Resources which would appear to be a business name operated by Mr Garrett as trustee for the Andrew Garrett Family Trust (No. 4). Mr Garrett describes the decision as:
all decisions made by the officers of the Commissioner of Taxation between February 2003 in respect to DCCIV-1666-2003 and otherwise in respect to the applicant in all his capacities set out in the Interlocutory application dated 9 April 2020 filed and served on the 17 April 2020 as annexed to my letter to the Tribunal dated 19 April 2020 and otherwise set out in the Notice of Constitutional Matters dated 21 October 2018 and annexure also attached to that letter
An extension of time was sought within which to bring the application. The reasons for the application referred to the AMG exhibits. Attached to the application is a 2019 trust tax return for the Andrew Garrett Family Trust (No 4).
Mr Garrett has failed to identify a decision made by the Commissioner of Taxation under the Income Tax Assessment Act 1997 (Cth) which is reviewable by the Tribunal. The application for an extension of time under s 29(7) is dismissed. The application for review is dismissed under s 42A(4) of the AAT Act.
2020/2370
Mr Garrett brings this application for review in the name of OenoViva Capital Resources which would appear to be a business name operated by Mr Garrett as trustee for the Andrew Garrett Family Trust (No. 4). The decision is evidenced by a letter from the Australian Signals Directorate to Mr Garrett dated 29 July 2019 referring to requests to access documents under the Privacy Act 1988 (Cth), Archives Act 1983 (Cth) and Freedom of Information Act 1982 (Cth). The letter advises that the Australian Signals Directorate is unable to help because it is not subject to the operation of the Privacy Act 1988 and is exempt from the operation of the Freedom of Information Act 1982. Mr Garrett also relies on a further letter from the Australian Signals Directorate dated 21 August 2019 advising that since the letter dated 29 July 2019, Mr Garrett has sent more than 85 emails the majority of which had large attachments and requesting him to cease this activity as soon as possible. This application fails to identify a decision taken under a Commonwealth enactment that confers jurisdiction on the Tribunal. The application for an extension of time under s 29(7) is dismissed. The application for review is dismissed under s 42A(4) of the AAT Act.
2020/2409
Mr Garrett brings this application for review in the name of OenoViva Capital Resources which would appear to be a business name operated by Mr Garrett as trustee for the Andrew Garrett Family Trust (No. 4). Mr Garrett provides a copy of an interlocutory application in the criminal jurisdiction of the District Court of South Australia dated 17 April 2020 as evidence of the decision. The interlocutory application document has been stamped by the registry ‘received not filed’ and Mr Garrett takes issue with this. This application fails to disclose a decision taken under a Commonwealth enactment which confers jurisdiction on the Tribunal. The application for review is dismissed under s 42A(4) of the AAT Act.
2020/2410
Mr Garrett brings this application for review in the name of the Australian People Future Fund. The application relates to a tax decision, and the reasons for the application refer to the AMG exhibits. He seeks an extension of time within which to bring the application.
Filed with the Tribunal are various documents from the Australian Taxation Office with respect to an audit of the trustee for the Australian People Future Fund including a statement of reasons for a decision to cancel the ABN of the trustee for the Australian People Future Fund dated 20 February 2018. Included in the documents is a letter from the Deputy Commissioner of Taxation dated 12 June 2018 advising of the result of an audit including details of a right to object to the assessment of all revised amounts and the assessment of non-tax shortfall penalty. The Income Tax Assessment Act 1997 does not confer jurisdiction on the Tribunal to review any of the decisions evidenced by the communications attached by Mr Garrett to this application for review. The Tribunal has no jurisdiction and accordingly dismisses the application under s 42A(4) of the AAT Act. The application for an extension of time is refused.
2020/2411
Mr Garrett seeks review with respect to three purported decisions which were filed on 25 April 2020 with the Tribunal and seeks an extension of time within which to bring the application. The decisions include a decision by the Australian Human Rights Commission (“the Commission”) dated 27 October 2015, a decision by the Victorian Equal Opportunity and Human Rights Commission (“the Victorian Commission”) dated 30 July 2015 and a ‘Media release’ document published by the Government of South Australia.
In his reasons for the application, he refers to the AMG Exhibits.
The first purported decision dated 27 October 2015 by the Commission relates to several complaints that the applicant made to the Commission in 2015. Section 46PO of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) sets out the provisions for review of decisions made by the Commission. Within this section of the AHRC Act, jurisdiction is conferred upon the Federal Court or Federal Circuit Court of Australia to provide an avenue for review. The AHRC Act does not confer jurisdiction on the Tribunal.
The second purported decision dated 30 July 2015 by the Victorian Commission relates to a request for information under the Freedom of Information Act 1982 (Vic). This Act does not confer jurisdiction on the Tribunal as it is not a decision taken under a Commonwealth enactment.
The third purported decision is a Media release document published by the Government of South Australia. This document does not disclose that any decision has been made and is not a decision taken under a Commonwealth enactment which confers jurisdiction on the Tribunal. The application is dismissed under s 42A(4) of the AAT Act. The application for an extension of time is refused.
2020/2413
Mr Garrett lodged this application as the trustee of the Andrew Garrett Family Trust Trading as Dynamic Commercial Workforce Solutions. On 25 April 2020, the applicant uploaded two decisions by the Australian Taxation Office dated 6 November 2019 and 11 December 2019. Mr Garrett sought an extension of time in which to bring the application and claims that both decisions are wrong referring again to the AMG exhibits.
The first decision dated 6 November 2019 is a notification that a decision has been made on an audit of the applicant’s tax returns for the income years ended 30 June 2018 and 2019. The notification sets out the review rights for the applicant as ‘if you disagree with our decision, you can lodge an objection when you have received your notices of assessment.’ Part IV of the Tax Administration Act 1953 (Cth) sets out provisions which state that a person who is dissatisfied with a decision may ‘object’ against that decision. Unless and until Mr Garrett files an objection against the decision, the decision is not reviewable by the Tribunal.
The second decision dated 11 December 2019 by the Australian Taxation Office (“ATO”) relates to a request to access 27 documents under the FOI Act. Section 54 of the FOI Act sets out the provisions for review of freedom of information requests. Within this section of the Act, jurisdiction is conferred upon the Information Commissioner to provide an avenue for internal review. Unless or until Mr Garrett seeks an internal review of the decision, the decision is not reviewable by the Tribunal. The application for an extension of time under s 29(7) is dismissed, and the application for review is dismissed under s 42A(4) of the AAT Act.
2020/2414
Mr Garrett brings this application in the name of the Australian People Future Fund. He claims a decision of the Federal Court was wrong due to ‘a miscarriage of justice, error of jurisdiction and as set in AAT cases 2020/Various as received by the AAT’. The applicant provided two letters dated 30 October 2018 and 12 November 2018 addressed to the Federal Court of Australia and a letter dated 7 November 2018 addressed to the applicant from the Australian Government Solicitor. A decision by the Federal Court of Australia is not a decision taken under a Commonwealth enactment which confers jurisdiction on the Tribunal. The application for review is dismissed under s 42A(4) of the AAT Act.
2020/2416
Mr Garrett brings this application in the name of the Australian People Future Fund with respect to conduct in the District Court of South Australia, with the Tribunal.
The applicant claims the decision was wrong for the following reasons:
the Stamping of any document as Received NOT filed by Registry is a fraud of the Court on the Court and a decision made outside of Jurisdiction as a matter arising under s33 of the Judiciary Act and otherwise under Common Law pursuant to the principle of ex debito justitae.
This conduct of the Registrar of the District Court of South Australia is not a decision taken under a Commonwealth enactment and is not reviewable by the Tribunal. The application for review is dismissed under s 42A(4) of the AAT Act. I note this application appears in substance to relate to the same decision as in the application number 2020/2409.
2020/2417
Mr Garrett brought this application on 27 April 2020 and filed the following eight purported decisions for review:
1.An email to Registrar Phelan dated 8 July 2016 regarding FOI review
2.An email to Registrar Phelan dated 26 June 2016
3.An email to Ben Wickham dated 30 May 2016
4.High Court Notice to Admit Facts dated 25 June 2016
5.Letter to High Court dated 23 December 2004
6.Letter to High Court dated 11 December 2004
7.Letter from the High Court dated 25 April 2016 regarding an FOI request
8.Letter to the High Court of Australia dated 18 August 2011
Mr Garrett sought an extension of time in which to bring the application and claims that all decisions are wrong referring again to the AMG exhibits and claiming an error of jurisdiction and fraud on the court, by the court.
Before jurisdiction can be considered, the Tribunal must be satisfied that an actual ‘decision’ has been made and that decision is made under an enactment. A ‘decision’ is defined in Director-General of Social Services v Chaney (1980) as ‘intended to cover ultimate or operative determinations rather than determinations of issues arising in the course of making an ultimate or operative decision’.[8] The purported decisions 1 to 6 and 8 do not meet this definition. The letter from the High Court dated 25 April 2016 regarding an FOI request satisfies this definition, so I will discuss the jurisdiction of this decision below.
[8] 3 ALD 161.
The applicant made an information request to seek access to:
any document or thing of an administrative nature relating to matters concerning my proposed applications seeking review of decisions made by the Federal Court of Australia and also HCA M 42 of 2014…in particular I also seek copies of any correspondence between officers of the High Court of Australia and officers of the Federal Court of Australia.
The request was refused. Part VI and VII of the FOI Act set out the provisions for review of freedom of information request decisions. Within this section of the FOI Act, jurisdiction is conferred upon the Information Commissioner to provide an avenue for internal review. Section 57A of the FOI Act only confers jurisdiction on the Tribunal when the Information Commissioner makes an internal review decision. There is no evidence before the Tribunal that an internal review decision has been made, and therefore the decision is not reviewable by the Tribunal.
These decisions are not decisions taken under a Commonwealth enactment and are not reviewable by the Tribunal. The application for an extension of time under s 29(7) is dismissed, and the application for review is dismissed under s 42A(4) of the AAT Act.
2020/2435
Mr Garrett brings this application for review in the name of OenoViva Capital Resources which would appear to be a business name operated by Mr Garrett as trustee for the Andrew Garrett Family Trust (No. 4).
Mr Garrett describes the decision as follows:
Decision of an officer of the Crown Nicholas Vadasz to Not Bank Financial Instruments at my instructions to his Trust account totalling $20,027,500, decision made under the Payment System Regulations Act 1998 (Cth), the Banking Act 1959 (Cth), The Reserve Bank Act (1959), The Bills of Exchange Act 1909 (Cth), Banking Law generally, The Judiciary Act 1903 (Cth) and the contract between Bank (Debtor) and Customer (Creditor).
I note that the decision is purportedly made by Mr Nicholas Vadasz who is a barrister practising at the independent bar. Any decision made by him cannot be a reviewable decision. Mr Garrett filed several documents in support of his application which include correspondence between him and a representative of the ANZ Bank, a copy of a International Bill of Exchange for $20,000,000.00 drafted by the applicant and several other unidentifiable documents also drafted by the applicant. None of the filed documents provide evidence of decisions taken under a Commonwealth enactment. This decision is not reviewable by the Tribunal. The application for review is dismissed under s 42A(4) of the AAT Act.
2020/2436
Mr Garrett brings this application for review in the name of OenoViva Capital Resources which would appear to be a business name operated by Mr Garrett as trustee for the Andrew Garrett Family Trust (No. 4).
Mr Garrett provided a letter from the Australian Government Solicitor (“AGS”) dated 21 November 2018 as his ‘reviewable decision’ and sought an extension of time for the application.
The application claims that the decision is wrong because:
The Attorney General’s role is the Champion of the Public Interest in which regard the AG is lawfully obliged to Intervene in proceedings under s78B of the Judiciary Act 1903 (Cth) and cause removal under s40 of the Judiciary Act 1903 (Cth) as the exclusive and original jurisdiction of the High Court of Australia.
The letter from AGS does not disclose a decision taken under a Commonwealth enactment and is not reviewable by the Tribunal. The application for an extension of time under s 29(7) is dismissed, and the application for review is dismissed under s 42A(4) of the AAT Act.
2020/2437
Mr Garrett seeks review of two purported decisions. In support of the application he has provided a form to be submitted to the Criminal Registry of the South Australia Magistrates Court, District Court and Supreme Court dated 25 March 2020 and an email from the Legal Services Commission (“LSC”) dated 27 April 2020.
The first decision is not a decision taken under a Commonwealth enactment and is not reviewable by the Tribunal. The second decision relates to a request for information from the LSC. The LSC agreed to release four documents to the applicant and provided an internal review avenue. The decision is made under State legislation and under s 29 of the Freedom of Information Act 1991 (SA), the decision is subject to internal review. This decision is not taken under a Commonwealth enactment and is not reviewable by the Tribunal. The application for review is dismissed under s 42A(4) of the AAT Act.
2020/2446
Mr Garrett brings this application in the name of the Australian People Future Fund with respect to seven purported decisions. All seven ‘decisions’ were Memorandums of Understanding between agencies in Australia. A Memorandum of Understanding does not meet the definition of ‘decision’[9] and is not a decision taken under a Commonwealth enactment. The application for review is dismissed under s 42A(4) of the AAT Act.
[9] See Director-General of Social Services v Chaney (1980) 3 ALD 161.
Conclusion
The Tribunal dismisses these applications under s 42A(4) of the AAT Act because I am satisfied that none of the decisions in the applications for review are reviewable by the Tribunal.
71. I certify that the preceding seventy [70] paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.
[Sgnd]
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Administrative Assistant Legal
Dated 9 June 2020
Dates of hearing: 4 June 2020
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