Kishore and Tax Practitioners Board
[2016] AATA 764
•30 September 2016
Kishore and Tax Practitioners Board [2016] AATA 764 (30 September 2016)
Division
TAXATION & COMMERCIAL DIVISION
File Number(s)
2014/5796
Re
Kamal Kishore
APPLICANT
And
Tax Practitioners Board
RESPONDENT
DECISION
Tribunal Deputy President S E Frost
Date 30 September 2016 Place Sydney 1. Threshold questions answered by the Tribunal as set out in the following reasons.
2. List the matter for directions at the earliest opportunity.
...........................[sgd].............................................
Deputy President S E Frost
Catchwords
TAX AGENTS – Code of Professional Conduct – tax agent registration terminated – whether conduct complained of by Respondent is a ‘tax agent service’ – whether the identified conduct, even if not a ‘tax agent service’, can amount to a breach of the Code of Professional Conduct – whether Board’s power delegated properly – whether committee of the Board acting with appropriate delegation – threshold questions dealt with by Tribunal
Legislation
Tax Agent Services Act 2009, ss 2-5, 30-10, 60-85, 60-95, 60-100, 60-105, 60-110, 60-115, 60-125, 90-1, 90-5
Cases
Charltons CJC Pty Ltd v Fitzgerald [2013] NSWSC 350
Charltons CJC Pty Ltd v Fitzgerald (No 2) [2013] NSWSC 958
Charltons CJC Pty Ltd v Fitzgerald (No 2) (Unreported, Supreme Court of NSW, Pembroke J, 20 August 2013)
Charltons CJC Pty Ltd v Fitzgerald (No 3) [2013] NSWSC 1945
Charltons CJC Pty Ltd v Fitzgerald (No 4) [2014] NSWSC 523
REASONS FOR DECISION
Deputy President S E Frost
30 September 2016
INTRODUCTION
Kamal Kishore became a registered tax agent on 7 March 2011 while working for his employer, Charltons CJC Pty Ltd (Charltons), a firm that provides accounting and tax agent services to its clients.
In July 2012 Mr Kishore and two of his colleagues at Charltons – Alden Fitzgerald and Kirat Prasad – registered a new company, Intuitive Accountants and Associates Pty Ltd (Intuitive), with each of them becoming a director and equal shareholder of that company. The three men resigned from Charltons and started working for Intuitive. Intuitive was registered as a tax agent the following month.
By letter dated 10 October 2014 the Tax Practitioners Board (the Board) notified Mr Kishore that it had decided to terminate his registration as a tax agent, with effect from 14 November 2014. The Board’s decision was based upon its becoming satisfied that Mr Kishore had breached s 30-10(1) of the Tax Agent Services Act 2009 (the Act) by not acting honestly and with integrity towards Charltons around the time he left that firm, in the circumstances described by Pembroke J in the Supreme Court of New South Wales in Charltons CJC Pty Ltd v Fitzgerald [2013] NSWSC 350.
Mr Kishore has applied to the Tribunal for review of the Board’s decision to terminate his registration as a tax agent.
THRESHOLD QUESTIONS TO BE DECIDED
Mr Kishore considers that his behaviour in relation to his separation from Charltons is not behaviour of a kind that the Board should, or even can, concern itself with. He says that the Code of Professional Conduct contained in Part 3 of the Act, where one finds the obligation imposed on tax agents that they ‘act honestly and with integrity’, does not reach to embrace conduct undertaken with respect to an employer/employee relationship. He says the Board has exceeded its power.
It was agreed, after hearing preliminary oral submissions, that a convenient way of approaching the resolution of the dispute between the parties was for the Tribunal to address a series of ‘threshold questions’ formulated by the parties and accepted by the Tribunal as central to the dispute. Those questions are:
1.What is the conduct relied upon by the Respondent to uphold the decision under review (the Conduct)?
1A.Is the Conduct a tax agent service (as defined)?
2.Whether the Conduct is capable of breaching section 30-10(1) of the Act?
3.Whether the Respondent (or its authorised delegate) has failed to comply with subsection 60-125(3) of the Act, by failing to make a decision under subsection 60-125(2) within the prescribed timeframe?
4.Whether the Respondent did properly delegate its power to commence an investigation so as to permit the instant investigation?
5.Whether the decision to terminate the Applicant’s registration as a tax agent contravenes the Act because it was purportedly made by a committee of the Board acting without appropriate delegation?
6.Whether the decision to terminate the Applicant’s registration as a tax agent contravenes the Act because it was purportedly made by the Board, the Board having delegated that power to a committee?
The parties provided written submissions addressing each question. Before answering the questions, it is necessary to set out relevant parts of the Act.
RELEVANT LEGISLATIVE PROVISIONS
Section 2-5 of the Act provides as follows:
The object of this Act is to ensure that *tax agent services are provided to the public in accordance with appropriate standards of professional and ethical conduct. This is to be achieved by (among other things):
(a)establishing a national Board to register tax agents, BAS agents and tax (financial) advisers; and
(b)introducing a *Code of Professional Conduct for *registered tax agents, BAS agents and tax (financial) advisers; and
(c)providing for sanctions to discipline registered tax agents, BAS agents and tax (financial) advisers.
Words or expressions that are preceded by an asterisk are defined in the dictionary in Division 90 of the Act. The dictionary includes the following definitions in s 90-1(1):
…
Board means the Tax Practitioners Board established by section 60-5.
…
Code of Professional Conduct means the Code of Professional Conduct set out in section 30-10.
…
registered tax agent means an entity that is registered under this Act as a registered tax agent.
Note:In most cases, an entity is taken not to be a registered tax agent if the entity is suspended from providing tax agent services under section 30-25.
…
registered tax agents, BAS agents and tax (financial) advisers means the following:
(a)entities that are registered under this Act as registered tax agents;
(b)entities that are registered under this Act as registered BAS agents;
(c)entities that are registered under this Act as registered tax (financial) advisers.
…
tax agent service has the meaning given by section 90-5.
…
Section 90-5 provides the meaning of the expression ‘tax agent service’:
90-5 Meaning of tax agent service
(1)A tax agent service is any service:
(a) that relates to:
(i)ascertaining liabilities, obligations or entitlements of an entity that arise, or could arise, under a *taxation law; or
(ii)advising an entity about liabilities, obligations or entitlements of the entity or another entity that arise, or could arise, under a taxation law; or
(iii)representing an entity in their dealings with the Commissioner; and
(b) that is provided in circumstances where the entity can reasonably be expected to rely on the service for either or both of the following purposes:
(i)to satisfy liabilities or obligations that arise, or could arise, under a taxation law;
(ii)to claim entitlements that arise, or could arise, under a taxation law.
…
The Code of Professional Conduct reads as follows:
30-10 The Code of Professional Conduct
Honesty and integrity
(1)You must act honestly and with integrity.
(2)You must comply with the *taxation laws in the conduct of your personal affairs.
(3)If:
(a) you receive money or other property from or on behalf of a client; and
(b) you hold the money or other property on trust;
you must account to your client for the money or other property.
Independence
(4)You must act lawfully in the best interests of your client.
(5)You must have in place adequate arrangements for the management of conflicts of interest that may arise in relation to the activities that you undertake in the capacity of a *registered tax agent, BAS agent or tax (financial) adviser.
Confidentiality
(6)Unless you have a legal duty to do so, you must not disclose any information relating to a client’s affairs to a third party without your client’s permission.
Competence
(7)You must ensure that a *tax agent service that you provide, or that is provided on your behalf, is provided competently.
(8)You must maintain knowledge and skills relevant to the *tax agent services that you provide.
(9)You must take reasonable care in ascertaining a client’s state of affairs, to the extent that ascertaining the state of those affairs is relevant to a statement you are making or a thing you are doing on behalf of the client.
(10)You must take reasonable care to ensure that *taxation laws are applied correctly to the circumstances in relation to which you are providing advice to a client.
Other responsibilities
(11)You must not knowingly obstruct the proper administration of the *taxation laws.
(12)You must advise your client of the client’s rights and obligations under the *taxation laws that are materially related to the *tax agent services you provide.
(13)You must maintain professional indemnity insurance that meets the Board’s requirements.
(14)You must respond to requests and directions from the Board in a timely, responsible and reasonable manner.
QUESTION 1 – WHAT IS THE CONDUCT RELIED UPON BY THE BOARD?
In its written submissions on the ‘threshold/preliminary questions’, at [5], the Board says it relies upon ‘the totality of the conduct engaged in by [Mr Kishore] as described and characterised in the 5 judgments of the NSW Supreme Court’. Those five judgments are:
·Charltons CJC Pty Ltd v Fitzgerald [2013] NSWSC 350 (First judgment);
·Charltons CJC Pty Ltd v Fitzgerald (No. 2) [2013] NSWSC 958 (Second judgment);
·Charltons CJC Pty Ltd v Fitzgerald No. 2 (Unreported, Supreme Court of NSW, Pembroke J, 20 August 2013) (Third judgment);
·Charltons CJC Pty Ltd v Fitzgerald (No. 3) [2013] NSWSC 1945 (Fourth judgment);
·Charltons CJC Pty Ltd v Fitzgerald (No. 4) [2014] NSWSC 523 (Fifth judgment).
The submissions continue, at [6], by setting out ‘the findings in respect of the Applicant’s conduct upon which [the Board] particularly relies, along with the Supreme Court’s findings in respect of the circumstances in which that conduct occurred, and its characterisation of that conduct’. There follow 14 sub-paragraphs, over almost five pages, of identified behaviour – most of it sourced to the First judgment or the Second judgment – and then at [7] the following:
Importantly, the defendants [Mr Kishore and his two colleagues] admitted most, but not all, of the conduct of which the plaintiff [Charltons] complained, and the dispute between the parties was primarily directed at the plaintiff’s entitlement to relief.[1] The Applicant, in this proceeding, concedes that ‘it is fair … to conclude that such admissions as his Honour is referring to, insofar as they are relevantly sheeted home to the applicant, were made by the applicant.’[2] (Footnotes in the original)
[1] First judgment at [1]; T3-35 to 36. See also [8] (T3-38) and [10] (T3-39)
[2] Transcript Day 2, p84 lines 11-13
Mr Kishore submits that the Board should not be allowed to rely on the matters, facts and circumstances detailed in [5]-[7] of the Board’s written submissions on the ‘threshold/preliminary questions’ to the extent that they do not reflect either:
(a)the statement in the notification letter dated 10 October 2014, namely:
The Board was satisfied, on the balance of probabilities, that you had breached subsection 30-10(1) of [the Act], by not acting honestly and with integrity, towards your former (registered company tax agent) employer, Charltons CJC Pty Ltd;
or (as a secondary, alternative submission):
(b)the facts set out by the Board in the Statement of Issues, Facts and Contentions of the Respondent, filed with the Tribunal on 24 July 2015 (RSIFC).
I reject Mr Kishore’s submission insofar as it attempts to confine the Board as specified in (a) above. That particular sentence needs to be read in context; it is immediately followed by a paragraph of commentary grounding the Board’s position in specified findings of Pembroke J in the First judgment. There could be no doubt, reading the notification letter in its entirety, as to the breadth, but also the specificity, of the Board’s concerns.
The Board’s position is spelt out in additional detail in its RSIFC. At [7] the Board refers to the proceedings commenced by Charltons against Mr Kishore and the other defendants. At [8] the Board refers to each of the five judgments, and then, at [9], details some of the specific findings made by Pembroke J in the First judgment and the Second judgment, namely:
(a)Mr Kishore had breached his contract of employment by failing to comply with a valid restraint of trade clause and failing to abide by a contractual duty of fidelity[3];
(b)Mr Kishore had breached his fiduciary obligation of loyalty to his employer[4];
(c)Mr Kishore’s conduct (and that of his co-defendants) was ‘characterised by dishonesty, misrepresentation and intrigue’[5];
(d)Mr Kishore and his co-defendants were ‘engaged in a strategy of deception’ with respect to the establishment of a new business[6], which ‘effectively diverted from Charltons the business opportunity’ of various clients[7];
(e)‘The admissions made and the evidence tendered, also satisfy me generally that after termination, Fitzgerald and Kishore assisted each other, and after 13 July 2012 – assisted Intuitive, to solicit and entice away from Charltons a significant number of existing clients of the firm’[8];
(f)Mr Kishore’s conduct (along with that of his co-defendants) caused substantial loss to Charltons[9].
[3] First judgment at [35]-[44]; T3-49 to 52
[4] Second judgment at [4]-[10]; ST2-5 and 6
[5] First judgment at [2]; T3-36
[6] First judgment at [6]; T3-37
[7] First judgment at [8]; T3-39
[8] First judgment at [10]; T3-39
[9] First judgment at [5]; T3-37
On a fair reading of the notification letter and RSIFC, I consider that the conduct relied upon by the Board to uphold the decision under review (the Conduct) comprises the following matters, as found by Pembroke J[10]:
·Mr Kishore’s breach of several of his contractual obligations to his former employer, Charltons;
·Mr Kishore’s breach of his fiduciary obligations to Charltons;
·Mr Kishore’s ‘engag[ing] in a strategy of deception’ to Charltons’ detriment;
·Mr Kishore’s provision of accounting services to people who were not existing clients of Charltons, failing to bill those people on behalf of Charltons, and effectively diverting from Charltons the business opportunity those clients represented; and
·Mr Kishore’s soliciting and enticing away from Charltons a significant number of existing clients of the firm.
[10] There is some overlap between these matters
QUESTION 1A – IS THE CONDUCT A TAX AGENT SERVICE (AS DEFINED)?
Part of the fourth matter may be a ‘tax agent service’; the rest of them appear not to be.
QUESTION 2 – IS THE CONDUCT CAPABLE OF BREACHING SECTION 30-10(1) OF THE ACT?
Mr Kishore’s primary submission is that s 30-10(1) of the Act is read in light of the objects clause, s 2-5, and the definition of ‘tax agent service’ in s 90-5, so that s 30-10(1) requires a registered tax agent to act honestly, and with integrity, in respect to the provision of tax agent services.[11] In other words, where impugned conduct is not itself the provision of a tax agent service, there can be no breach of the requirement to act honestly and with integrity.
[11] Transcript Day 1, page 15 line 44-page 16 line 1
I do not accept the submission.
I do accept that the various provisions of the Act must be interpreted so as to further the objects in s 2-5. But that does not mean that s 30-10(1) should be read in the way Mr Kishore submits.
As the Board’s submissions point out, Division 30 of the Act, which includes the Code of Professional Conduct (the Code), begins with a ‘Guide to this Division’. The Guide, in s 30-1, explains what Division 30 is about, and relevantly:
The Code of Professional Conduct regulates your personal and professional conduct as a registered tax agent, BAS agent or tax (financial) adviser.
In interpreting an ‘operative provision’ of the Act, such as a provision included in s 30-10, the Guide may only be considered[12]:
(a)in determining the purpose or object underlying the provision; or
(b)to confirm that the provision’s meaning is the ordinary meaning conveyed by its text, taking into account its context in the Act and the purpose or object underlying the provision; or
(c)in determining the provision’s meaning if the provision is ambiguous or obscure; or
(d)in determining the provision’s meaning if the ordinary meaning conveyed by its text, taking into account its context in the Act and the purpose or object underlying the provision, leads to a result that is manifestly absurd or is unreasonable.
[12] Section 80-5(2) of the Act
In noting that the Code ‘regulates your personal and professional conduct as a registered tax agent …’ (emphasis added), the Guide clarifies that the purpose or object underlying s 30-10(1) in particular, but more broadly the entire Code, is to uphold standards in all aspects of a person’s conduct as a registered tax agent, whether that conduct is personal conduct as a registered tax agent, or professional conduct as a registered tax agent. It follows that the reach of s 30-10(1) is not confined in the way contended for by Mr Kishore. If it were so confined – so as to require honesty and integrity only in relation to the provision of tax agent services – then one would expect the remaining subsections of s 30-10 to be similarly confined. That would have the effect of depriving subsection (2), at least, of any meaning at all.
That the Code reaches beyond conduct undertaken in relation to the provision of tax agent services does not conflict with the object of the Act as specified in s 2-5. It is by requiring appropriate standards in all aspects of a person’s personal and professional conduct as a registered tax agent that the Code seeks to ensure that tax agent services are provided to the public ‘in accordance with appropriate standards of professional and ethical conduct’.
I conclude that the Conduct is capable of breaching s 30-10(1) of the Act. The answer to question 2 is ‘yes’.
QUESTION 3 – HAS THE BOARD (OR ITS AUTHORISED DELEGATE) FAILED TO COMPLY WITH SUBSECTION 60-125(3) OF THE ACT, BY FAILING TO MAKE A DECISION UNDER SUBSECTION 60-125(2) WITHIN THE PRESCRIBED TIMEFRAME?
Subdivision 60-E of the Act deals with investigations.
The Board is empowered to investigate, among other things, any conduct that may breach the Act: s 60-95(1)(b). The Board must notify you in writing if it decides to investigate you, and the notice must be given within 2 weeks after the decision is made: s 60-95(2). An investigation is taken to commence on the date of the notice: s 60-95(3).
If the Board investigates conduct under s 60-95 and finds that the conduct breaches the Act, the Board must either make a decision that no further action will be taken, or do one or more specified things, including imposing one or more sanctions under Subdivision 30-B, or – as in this case – terminating the agent’s registration under Subdivision 40-A: s 60-125(2). The decision the Board makes under s 60-125(2) must be made ‘within 6 months after the day on which the investigation is taken to have commenced under subsection 60-95(3)’ unless, within specified criteria, the Board determines a longer period to make such a decision: s 60-125(3). There is no suggestion in this case that the Board determined a longer period to make its decision.
It is plain from the content of Subdivision 60-E that a decision by the Board to undertake an investigation is a very serious decision for the Board to take. For the purpose of an investigation, the Board may:
·in writing, request a person to give information or produce documents to the Board (s 60-100); and
·in writing, require a person to appear before the Board to give evidence or produce documents (s 60-105).
The Board may require a person to give evidence on oath or affirmation (s 60-110) and the privilege against self-incrimination is not available (s 60-115).
These are indicators of the Parliament’s view that an investigation by the Board is a very serious affair.
The documents before me indicate that the Board notified Mr Kishore by letter dated 10 April 2014 (T3-87) that it had decided, on 3 April 2014, ‘to commence an investigation under section 60-95 of [the Act] regarding [Mr Kishore’s] conduct that may have breached [the Act]’. That document, in my view, puts it beyond argument that the Board’s investigation ‘is taken to [have] commence[d]’ on 10 April 2014.
Mr Kishore argues that there must have been some investigation by the Board prior to 10 April 2014 ‘for how otherwise could the Board [have] taken the decision to advise formally of its decision’[13]. No doubt there will have been some enquiry, some examination, even some analysis, of Mr Kishore’s conduct before 10 April 2014, but that is not enough to sustain a submission that the ‘investigation’ started before then. I agree with the Board’s submission that the language of s 60-95(3) does not permit a factual enquiry beyond ascertaining the date of the notice given under s 60-95(2).
[13] Applicant’s submissions in reply, at [38]
The Board made its decision under s 60-125(2) of the Act – to terminate Mr Kishore’s registration – on 17 September 2014 (T1-11). That was within the timeframe permitted by s 60-125(3) to make its decision ‘within 6 months after the day on which the investigation is taken to have commenced under subsection 60-95(3)’.
The answer to question 3 is ‘no’.
QUESTION 4 – DID THE BOARD PROPERLY DELEGATE ITS POWER TO COMMENCE AN INVESTIGATION SO AS TO PERMIT THE INVESTIGATION OF MR KISHORE?
Section 70-30 of the Act provides that, subject to some restrictions not relevant to this question, the Board may, by writing, delegate all or any of its functions and powers to (among others) a Board member.
Exhibit R3 includes a document entitled ‘Instrument of Delegation – Delegation No. 96’. It records that on 14 February 2013 the Board resolved to delegate to Board member Russell Smith, pursuant to s 70-30 of the Act, specified functions and powers, including ‘all of the Board’s functions and powers under subdivision 60-E of [the Act]’, except certain specified functions which have no relevance in this case.
Also within Exhibit R3 is a document entitled ‘DRAFT Minutes of Delegate Meeting’, dated 3 April 2014, which includes the following at [2.5]:
The Delegate [earlier identified in the document as Russell Smith] determined to commence an investigation into the conduct of Mr Kishore, with particular attention to potential breaches of subsection 30-10(1) of [the Act].
Although the document is headed ‘DRAFT’, I find that the quoted material at [2.5] accurately records what happened during the meeting, namely that Mr Smith, as a person to whom the power to investigate conduct had been validly delegated by the Board, determined on 3 April 2014 to commence an investigation into Mr Kishore’s conduct. That is consistent with the notification letter dated 10 April 2014 (T3-87).
The answer to question 4 is ‘yes’.
QUESTION 5 – DID THE DECISION TO TERMINATE MR KISHORE’S REGISTRATION AS A TAX AGENT CONTRAVENE THE ACT BECAUSE IT WAS PURPORTEDLY MADE BY A COMMITTEE OF THE BOARD ACTING WITHOUT APPROPRIATE DELEGATION?
Section 90-1 of the Act defines ‘committee’ to mean a committee established under s 60-85. That section provides:
60-85 Establishment of committees
(1)The Board may establish *committees to assist the Board in the performance of its functions and the exercise of its powers.
(2)A *committee is to consist of such persons (whether *Board members or not) as the Board determines.
Section 70-30 of the Act provides that, subject to some qualifications, the Board may, by writing, delegate all or any of its functions and powers to (among others) a committee.
One of the qualifications, relevant to this question, is found in s 70-30(2):
(2)The Board may only delegate to a *committee a power to make a decision in respect of which an application for review may be made to the Administrative Appeals Tribunal under section 70-10 if:
(a) the committee has 3 members or more; and
(b) all members of the committee are *Board members.
A decision under Subdivision 30-B or 40-A to terminate a tax agent’s registration is reviewable by the Tribunal by virtue of s 70-10(e) of the Act.
On 30 April 2014, and pursuant to s 60-85 of the Act, the Board established Committee 19, called the Board Conduct Committee (BCC). The Board determined that the BCC would consist of ‘at least any three of Ian R. Taylor (Chair of the Board), Caroline Clarke, Cynthia Coleman, Roger Cotton, Russell Smith and Yvonne Sneddon (members of the Board)’. The Board delegated to the BCC several of its functions and powers, including all of its functions and powers under Part 3 of the Act, and all of its functions and powers under s 60-125 of the Act[14].
[14] Exhibit R4
It was the BCC, consisting of Russell Smith, Cynthia Coleman, Roger Cotton and Yvonne Sneddon (all of them Board members), that determined on 17 September 2014, under s 60-125(2)(a)(i) of the Act, to terminate Mr Kishore’s registration as a tax agent under s 30-30 of the Act[15]. It seems to me that the BCC had the appropriate delegation to make that decision.
[15] T4-256/257
Against that, though, Mr Kishore emphasises the role to be played by a committee – namely, in the language of s 60-85(1), to ‘assist the Board in the performance of its functions and the exercise of its powers’. He submits that this does not authorise a committee’s exercise of ‘all of the powers and functions’ of the Board; it can only ‘assist’, or as the Oxford English Dictionary defines the word, ‘help (someone), typically by doing a share of the work …’. Mr Kishore then submits that there is no evidence that the BCC ‘assisted’ the Board. Finally, he submits that it is necessary that all of the members of the BCC must be members of the Board, and not merely those who sat on the committee on the relevant date, 17 September 2014.
Mr Kishore’s submissions do not assist him. The Board consists of the Chair and 6 or more other Board members (s 60-10(1) of the Act). It has delegated its powers and functions to the BCC so as to remove the need for the entire membership of the Board to exercise the Board’s powers under s 60-125. No evidence is required to establish the fact that the BCC, as a subset of the Board (in other words, a committee comprising only members of the Board), and holding a proper delegation from the Board itself, is ‘assisting’ the Board by exercising those powers.
The answer to question 5 is ‘no’.
QUESTION 6 – DID THE DECISION TO TERMINATE MR KISHORE’S REGISTRATION AS A TAX AGENT CONTRAVENE THE ACT BECAUSE IT WAS PURPORTEDLY MADE BY THE BOARD, THE BOARD HAVING DELEGATED THAT POWER TO A COMMITTEE?
The letter dated 10 October 2014[16] informs Mr Kishore that ‘a Committee of the Board, acting under the delegated authority of the Board’, determined that it was satisfied that Mr Kishore had breached s 30-10(1) of the Act. That statement is consistent with the BCC minutes of 17 September 2014 at T4-256/257.
[16] T1-11
However, the letter dated 10 October 2014 goes on to state that ‘the Board’ has decided to terminate Mr Kishore’s registration. It is not surprising, perhaps, that the letter is expressed in that way, since the decision of the BCC under delegation from the Board necessarily becomes the decision of the Board itself.
Nevertheless, Mr Kishore latches on to the distinction within the letter dated 10 October 2014 to argue that the Board – which on his understanding made the termination decision – did not have that power because, having delegated it to the BCC, it was now ‘bereft of its powers’[17]. I do not accept that argument. There is nothing to suggest that the Board, in delegating its powers and functions to the BCC, delegated those powers and functions away, so that it could not still exercise them itself. Therefore, even if it is the case (although I do not find it to be so) that the BCC made the determination that Mr Kishore had breached the Code but the Board made the termination decision, the Act has not been contravened.
[17] Transcript Day 1, p46 lines 11-12
The answer to question 6 is ‘no’.
DECISION
The threshold questions are answered accordingly. The matter should be listed for directions at the earliest opportunity.
I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President S E Frost ...............[sgd]...................................................
Associate
Dated 30 September 2016
Dates of hearing 9 & 10 February 2016 Counsel for the Applicant Mr J Dupree Solicitors for the Applicant Aitken Lawyers Pty Ltd Solicitors for the Respondent Australian Government Solicitor
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