Kishore v Tax Practitioners Board

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FEDERAL COURT OF AUSTRALIA

Kishore v Tax Practitioners Board [2016] FCA 1328

File number: NSD 1887 of 2016
Judge: ROBERTSON  J
Date of judgment: 10 November 2016
Catchwords: ADMINISTRATIVE LAW – whether appeal lay to the Federal Court of Australia under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from an answer by the Tribunal to a threshold question as to the scope of a statutory provision – whether that answer was a decision of the Tribunal which constituted the effective decision or determination of the application for review – whether Director-General of Social Services v Chaney [1980] FCA 87; 47 FLR 80 distinguishable
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 44

Tax Agent Services Act 2009 (Cth) s 30-10

Cases cited:

Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321

Australian Postal Corporation v Forgie [2003] FCAFC 223; 130 FCR 279

Australian Postal Corporation v Sinnaiah [2013] FCAFC 98; 213 FCR 449

Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164; 48 AAR 559

Commissioner of Taxation v Cancer and Bowel Research Association [2013] FCAFC 140; 305 ALR 534

Director-General of Social Services v Chaney [1980] FCA 87; 47 FLR 80

Geographical Indications Committee v The Honourable Justice O’Connor [2000] FCA 1877; 64 ALD 325

Irwin v Military Rehabilitation & Compensation Commission [2009] FCAFC 33; 174 FCR 574

Kowalski v Repatriation Commission [2009] FCAFC 107; 259 ALR 444

Lucas v Commissioner of Taxation [2015] FCA 598; 66 AAR 381

Luck v Chief Executive Officer of Centrelink (No 2) [2015] FCAFC 112; 67 AAR 399

Rana v Repatriation Commission [2011] FCAFC 123; 196 FCR 137
Date of hearing: 9 November 2016
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 32
Counsel for the Applicant: Mr J R Dupree
Solicitor for the Applicant: Aitken Lawyers
Solicitor for the Respondent: Mr M Varley of Australian Government Solicitor

ORDERS

NSD 1887 of 2016
BETWEEN:

KAMAL KISHORE

Applicant
AND:

TAX PRACTITIONERS BOARD

Respondent

JUDGE:

ROBERTSON  J

DATE OF ORDER:

9 NOVEMBER 2016

THE COURT ORDERS THAT:

1.The appeal filed on 28 October 2016 from the decision of the Administrative Appeals Tribunal dated 30 September 2016 is dismissed as incompetent.

2.The appellant pay the respondent’s costs, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

  1. These reasons consider and determine an objection by the respondent to the competency of an appeal purportedly brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The jurisdiction of the Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or under s 39B of the Judiciary Act 1903 (Cth) was not invoked.

  2. On 30 September 2016, the Administrative Appeals Tribunal answered what it described as certain threshold questions and listed the matter for…

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Details
Case
[2016] FCA 1328
Decision Date

CaseChat Overview and Summary

The case of Kishore v Tax Practitioners Board involved an appeal to the Federal Court of Australia against a decision of the Administrative Appeals Tribunal (AAT). Kishore, a tax agent, appealed the AAT's decision concerning his registration as a tax agent. The appeal focused on the AAT's response to threshold questions regarding whether certain conduct breached the Tax Agent Services Act 2009 (Cth). Specifically, the AAT determined whether the conduct in question could breach section 30-10(1) of the Act, which pertains to the Code of Professional Conduct for tax agents.

The primary legal issue before the court was whether an appeal lay to the Federal Court from the AAT's answer to a threshold question, specifically whether such an answer constituted an effective decision or determination of the application for review. This issue hinged on interpreting the scope of section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) and distinguishing it from the decision in Director-General of Social Services v Chaney [1980] FCA 87; 47 FLR 80. The court had to determine if the AAT's answer to a threshold question was a final decision that could be appealed under section 44, or if it was an intermediate step that did not yet constitute a final decision.

The court held that the AAT's answer to the threshold question did not constitute an effective decision or determination of the application for review. The tribunal had not yet completed its review of the decision under appeal, nor had it affirmed, varied, or set aside the decision in question. The court applied the decision in Chaney, which established that appeals should not be made from non-determinative steps or intermediate directions, determinations, or decisions of the AAT. Therefore, the appeal was deemed incompetent as the tribunal had not yet concluded its review process. The distinction between answers to preliminary questions and threshold questions was considered nominal rather than substantive.

Orders

Orders of the court

1. The appeal filed on 28 October 2016 from the decision of the Administrative Appeals Tribunal dated 30 September 2016 is dismissed as incompetent.

2. The appellant pay the respondent’s costs, as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 28 October 2016, a notice of appeal under s 44 of the Administrative Appeals Tribunal Act was filed in this Court stating as follows, as amended by leave given in the course of the hearing:The Applicant appeals from the decision of the Administrative Appeals Tribunal in the Taxation and Commercial Division, as contained in paragraphs 24 and/or 26 of the Administrative Appeals Tribunal’s judgment published 30 September 2016 (“the Judgment”).The underlining indicates the amendment. The Tribunal described, at [6], the background and the questions as follows: 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? As referred to in the amended notice of appeal, [24] of the Tribunal’s reasons was as follows: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.(Original italics.) As also referred to in the amended notice of appeal, [26] of the Tribunal’s reasons was as follows:I conclude that the Conduct is capable of breaching s 30-10(1) of the Act. The answer to question 2 is ‘yes’.The Act referred to was the Tax Agent Services Act 2009 (Cth). Section 30-10 of that Act set out the Code of Professional Conduct. As set out at [5] above, the “Conduct” was stated at [6] of the Tribunal’s reasons to be the conduct relied upon by the respondent to uphold the decision under review.

Ratio Decidendi

Legal Principle Established

The respondent submitted that having answered ‘yes’ to the question of whether the Conduct was capable of breaching s 30-10(1) of the Tax Agent Services Act, the Tribunal had next to determine whether the Conduct did breach that section. Accordingly, the Tribunal proceeding from which this “appeal” purported to be brought remained ongoing. There had been no hearing by the Tribunal of the merits of the substantive application before it. The decision referred to did not constitute “the effective decision or determination of the application for review” that was before the Tribunal and, therefore, no appeal lay from that decision.Consideration In my opinion, the point of the decision in Chaney is to avoid judicial review by way of an appeal to this Court instanter and as of right from non-determinative steps, determinations or decisions of the Tribunal. This reflects the undesirability of fragmenting proceedings in the Tribunal by the making of applications to the Federal Court seeking to challenge intermediate directions, determinations or decisions of the Tribunal: see the judgment of the Full Court in Geographical Indications Committee v The Honourable Justice O’Connor [2000] FCA 1877; 64 ALD 325 at [26]-[28]. In the present case, it is plain that the Tribunal has not yet completed its review of the decision of the Tax Practitioners Board to terminate the appellant’s registration as a tax agent: see [17] and [18] above. The Tribunal has not affirmed, varied or set aside the decision under review: see s 43 of the Administrative Appeals Tribunal Act. Applying the decision of the Full Court in Chaney, an appeal under s 44 of the Administrative Appeals Tribunal Act is incompetent. The decision in Chaney has been approved or applied by many Full Courts including: Geographical Indications Committee v The Honourable Justice O’Connor [2000] FCA 1877; 64 ALD 325; Australian Postal Corporation v Forgie [2003] FCAFC 223; 130 FCR 279; Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164; 48 AAR 559; Irwin v Military Rehabilitation & Compensation Commission [2009] FCAFC 33; 174 FCR 574; Kowalski v Repatriation Commission [2009] FCAFC 107; 259 ALR 444; Rana v Repatriation Commission [2011] FCAFC 123; 196 FCR 137; Australian Postal Corporation v Sinnaiah [2013] FCAFC 98; 213 FCR 449; Commissioner of Taxation v Cancer and Bowel Research Association [2013] FCAFC 140; 305 ALR 534 and Luck v Chief Executive Officer of Centrelink (No 2) [2015] FCAFC 112; 67 AAR 399. The decision in Chaney has been recently applied by a single judge of this Court in Lucas. The decision in Bond, relied on by the appellant, concerned the Administrative Decisions (Judicial Review) Act and not the quite different context of s 44 of the Administrative Appeals Tribunal Act. In any event, in my opinion, Bond does not support the appellant’s contention that the Tribunal’s answer to a threshold question is such a decision. The decision in Lucas, also referred to by the appellant, does not support the competence of his present appeal. In that case it was said, at [1]:The applicants, Mr and Mrs Lucas, seek judicial review of answers given by the Administrative Appeals Tribunal on 19 December 2014 to preliminary questions. The answers were given in a proceeding commenced in the Tribunal by Mr and Mrs Lucas under Pt IVC (“the Pt IVC proceeding“) of the Taxation Administration Act 1953 (Cth) (“the Administration Act”). The application by Mr and Mrs Lucas to this Court for judicial review of the Tribunal’s answers to the preliminary questions is not brought as an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) because the Pt IVC proceedings are not yet concluded. The Tribunal’s preliminary answers can be the subject of challenge under s 44 of the AAT Act once the Pt IVC proceedings are concluded in the Tribunal, … Further, in my opinion, the distinction sought to be drawn by the present appellant between answers to preliminary questions in that case and answers to threshold questions in this case is not one of substance but is one of nomenclature only.