JKQT and Commissioner of Taxation (Taxation)

The case of JKQT and Commissioner of Taxation concerned an applicant who was an undischarged bankrupt and sought to object to income tax assessments. The dispute before the Administrative Appeals Tribunal (AAT) involved the applicant's standing to pursue the review, and whether the Commissioner of Taxation was estopped from raising this issue. The matter was heard by Mrs J C Kelly, Senior Member, and N Gaudion, Member.

The legal issues before the court were whether the respondent was estopped from arguing the applicant lacked standing, and whether the applicant's bankruptcy, which occurred after the commencement of AAT proceedings, distinguished his case from previous authorities. The court was required to determine if the applicant fell within a limited class of bankrupts who might retain standing despite their bankruptcy, and to consider the application of sections 60(2) and 60(3) of the *Bankruptcy Act 1966* (Cth) regarding the trustee's election to prosecute or discontinue an action.

The court reasoned that the respondent was not estopped from raising the issue of standing, as parties cannot confer jurisdiction by consent, and a statutory precondition for standing must be satisfied. The court found that the applicant did not have an accrued right to review that would require the Tribunal to disregard changed circumstances arising from his bankruptcy. Applying the principles from *McCallum* and *Cummings*, the court concluded that the applicant did not fall within the limited class of bankrupts identified by Lehane J in *Robertson Jnr* as having standing. The court noted that the trustee in bankruptcy had been notified of the proceedings but had not responded within the prescribed 28 days.

The court set aside the decision of the Tribunal, finding it was wrong in law. The matter was remitted to the Tribunal for further consideration. The court determined that the applicant did not have standing to maintain the proceeding, and subject to further consideration of the appropriate orders, the Tribunal would have held it had no jurisdiction and dismissed the proceedings.