Gould and Tax Practitioners Board - [2019] AATA 1056

Gould and Tax Practitioners Board [2019] AATA 1056 (28 May 2019)
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2019/0495
Re:Vanda Russell Gould
APPLICANT

AndTax Practitioners Board
RESPONDENT

DECISION
Tribunal:Deputy President I R Molloy
Date:28 May 2019
Place:Sydney

The Applicant’s application for an Order pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975 is refused.
The interim stay granted on 31 January 2019 is discharged.
...........................[SGD].............................................
Deputy President I R Molloy
CATCHWORDS
TAX AGENT REGISTRATION - application for a stay of the decision under review - interim stay order in operation - consideration of the applicant's prospects of success - adverse findings against applicant in a decision of the Federal Court of Australia - whether applicant is a person of good fame, integrity and character - the consequences to the applicant if a stay is not granted - the public interest - the consequences to the respondent in carrying out its functions - whether the review would be rendered nugatory - time likely until the hearing of the review - application for stay of the decision under review is refused - interim stay order discharged
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 41
Tax Agent Services Act 2009 (Cth) ss 2-5, 20-5, 20-25, 40-5, 40-25
CASES
Albarran v Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350
Burnett and Tax Practitioners Board [2014] AATA 87
Bywater Investments Limited v Commissioner of Taxation [2015] FCAFC 176
Bywater Investments Limited v Commissioner of Taxation; Hua Wang Bank Berhad v Commissioner of Taxation [2016] HCA 45
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Hua Wang Bank Berhad v Commissioner of Taxation [2014] FCA 1392
Hughes and Vale Pty Ltd v New South Wales [No 2] (1955) 93 CLR 127
Re Dekenic and Tax Agents Board of NSW (1982) 6 ALD 240
Re Scott and Australian Securities and Investments Commission (2009) 51 AAR 114
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
REASONS FOR DECISION
Deputy President I R Molloy
28 May 2019
INTRODUCTION

This is a stay application made by the Applicant, Vanda Gould, pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the Act”). It is made in a proceeding in which Mr Gould seeks review of a decision of the Tax Practitioners Board (“the Board” or “the Respondent”) made on 13 December 2018.
By its decision (“the reviewable decision”) the Board determined inter alia to terminate
Mr Gould’s registration under s 40-5(1)(b) of the Tax Agent Services Act2009 (Cth) (“TASA”). The reviewable decision was to take effect from 7 February 2019.
The Board also determined: (a) to reject Mr Gould’s application for renewal of his registration as a tax (financial) adviser under s 20-25(1) of TASA, and (b) that Mr Gould may not apply for registration under TASA for a period of five years from the date the termination of his registration was to take effect under s 40-25 of

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: [2019] AATA 1056
Decision Date: 28 May 2019

CaseChat Overview and Summary

The application before Deputy President Molloy of the Administrative Appeals Tribunal concerned a request for a stay of a decision made by the Tax Practitioners Board. An interim stay order was already in place, and the applicant sought to have this continued pending the final determination of their review application. The core of the dispute revolved around whether the applicant met the criteria for a stay, particularly in light of adverse findings made against them in a previous Federal Court of Australia decision, which raised questions about their good fame, integrity, and character.

The Tribunal was required to determine whether to grant a stay of the Tax Practitioners Board's decision. This involved assessing the applicant's prospects of success in the substantive review, the potential consequences to the applicant if a stay was not granted, the public interest considerations, and the impact on the respondent in carrying out its statutory functions. The Tribunal also had to consider whether refusing a stay would render the review nugatory and the likely timeframe until the hearing of the review.

In refusing the application for a stay, Deputy President Molloy found that the applicant had not established a strong case demonstrating that their application for review was more likely than not to succeed. The Deputy President placed significant weight on the public interest in refusing the stay, particularly given the adverse findings from the Federal Court. Taking these factors into account, the Tribunal concluded that the stay should be refused and consequently discharged the interim stay order that had been in place.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Directions were made on 17 May 2019 to advance the application to hearing; including requiring hearing certificates to be lodged by 11 October 2019. CONCLUSION I am not satisfied the Applicant has established a strong case such that it could be said his application for review is more likely to succeed than not. Importantly I think there is a significant public interest in refusing the stay. Taking these and the other matters into account the stay should be refused. It follows that the interim stay should be discharged.

Ratio Decidendi

Legal Principle Established

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