FEDERAL COURT OF AUSTRALIA
Kolya v Tax Practitioners Board [2012] FCA 492
Citation: Kolya v Tax Practitioners Board [2012] FCA 492 Appeal from: Kolya v Tax Practitioners Board [2012] FCA 215 Parties: PETER KOLYA v TAX PRACTITIONERS BOARD and FEDERAL COMMISSIONER OF TAXATION File number: ACD 32 of 2012 Judge: FOSTER J Date of judgment: 11 May 2012 Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 43(2B), s 44(1)
Federal Court Rules 2011, r 4.11 and r 4.12Cases cited: Kolya v Tax Practitioners Board [2012] FCA 215 related
Re Kolya v Tax Practitioners Board [2011] AATA 804 related
Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (No 3) [2011] FCA 1019 cited
Phillip Same Accountants Pty Ltd v Tax Practitioners Board (2011) 122 ALD 97 cited
Samsung Electronics Co. Limited v Apple Inc. [2011] FCAFC 156 cited
Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87 citedDate of hearing: 11 May 2012 Place: Canberra Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 26 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondents: Mr AP Berger Solicitor for the Respondents: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 32 of 2012
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: PETER KOLYA
AppellantAND: TAX PRACTITIONERS BOARD
First RespondentFEDERAL COMMISSIONER OF TAXATION
Second Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
11 MAY 2012
WHERE MADE:
CANBERRA
THE COURT ORDERS THAT:
1.The Interlocutory Application filed by the appellant on 3 April 2012 be dismissed.
2.The costs of that Interlocutory Application be costs in the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 32 of 2012
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: PETER KOLYA
AppellantAND: TAX PRACTITIONERS BOARD
First RespondentFEDERAL COMMISSIONER OF TAXATION
Second Respondent
JUDGE:
FOSTER J
DATE:
11 MAY 2012
PLACE:
CANBERRA
REASONS FOR JUDGMENT
In a judgment delivered on 13 March 2012 (Kolya v Tax Practitioners Board [2012] FCA 215), a judge of this Court dismissed an application by the appellant made to this Court pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The appellant had appealed from a decision of the Administrative Appeals Tribunal (the AAT) given on 15 November 2011. The primary judge dismissed the appellant’s application with costs.
The AAT had declined to overturn a decision of the Tax Practitioners Board that the appellant should not be registered as a tax agent and also refused to set aside the same Board’s decision to terminate the appellant’s registration as a BAS agent. The AAT concluded that the appellant is not a fit and proper person to hold either registration.
On 3 April 2012, the appellant filed a…
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- Kolya v Tax Practitioners Board [2012] FCA 492
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- [2012] FCA 492
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CaseChat Overview and Summary
The primary legal issues addressed by the court were whether the appellant could demonstrate a serious question to be tried or a prima facie case, and if the balance of convenience and justice favoured granting the interlocutory injunction. The court also considered whether the appellant had effectively identified the alleged errors made by the primary judge in his amended notice of appeal. The court examined the legislative framework governing the registrations in question and the appellant's failure to challenge the AAT's fundamental finding regarding his fitness as a tax agent or BAS agent.
The court held that the appellant had not demonstrated a serious question to be tried or a prima facie case, primarily due to the unclear and confused nature of the amended notice of appeal. The court found that it was difficult to discern from the notice any clear specification of the errors allegedly made by the primary judge. Furthermore, the court noted that the balance of convenience and justice did not favour granting the interlocutory injunction, as the status quo before the Board’s decisions had the appellant unregistered as a tax agent and registered as a BAS agent. The court concluded that any interlocutory injunction would essentially be limited to preserving the appellant's registration as a BAS agent, for which he had no prima facie entitlement.
The court dismissed the appellant's interlocutory application and ordered that the costs of the application be costs in the appeal. The final orders were to dismiss the Interlocutory Application and to allocate the costs of the application to the appeal proceedings.
Orders
Orders of the court
1. The Interlocutory Application filed by the appellant on 3 April 2012 be dismissed.
2. The costs of that Interlocutory Application be costs in the appeal.
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
Ratio Decidendi
Legal Principle Established
Finally, the primary judge considered the appellant’s assertion that he had been denied procedural fairness by the AAT. His Honour said that this argument had not been developed by the appellant beyond asserting that the AAT was biased against him. Having himself read the transcript of the AAT hearing, the primary judge saw no evidence of bias. His Honour therefore rejected this argument. CONSIDERATION For reasons which I explained in Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (No 3) [2011] FCA 1019, at [6]–[9], in a case such as the present, even if the circumstances of the case justified the grant of some interlocutory relief, a stay or suspension of the order for dismissal made by the primary judge is not the appropriate order. Staying a dismissal of an appeal under s 44 of the AAT Act would be of no use to the appellant in the present case because the AAT’s decision would still stand. In substance, in my view, what the appellant needs to show is that he is entitled to an interlocutory injunction if he is to achieve the outcome which he desires. In order to justify the grant of an interlocutory injunction in the present circumstances, the appellant would need to demonstrate that he has a serious question to be tried or a prima facie case and that the balance of convenience and justice requires that an injunction be granted. These principles were explained in considerable detail by the Full Court in Samsung Electronics Co. Limited v Apple Inc. [2011] FCAFC 156 (see also Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87 at [13]–[14[ (per French J, as he then was)). The status quo prior to the Tax Practitioner’s Board’s decisions was that the appellant was not a registered tax agent (although he was an applicant for registration as such an agent) and the appellant was a registered BAS agent. In the present case, therefore, any interlocutory injunction would be confined to preserving the appellant’s registration as a BAS agent. He has no prima facie or other entitlement to be registered as a tax agent. The Amended Notice of Appeal is a somewhat confused document which does not enable a reader to identify the error or errors which the appellant contends were made by the primary judge. For this reason, it is rather difficult to assess whether there is a serious question to be tried or a prima facie case on the appeal. As matters presently stand, I do not think that there is such a case. I express that opinion rather diffidently because, as I have already mentioned, it is difficult to discern from the Amended Notice of Appeal any clear specification of the error or errors allegedly made by the primary judge which the appellant contends should be corrected by the Full Court. However, as far as the balance of convenience and justice is concerned, it seems to me that the relevant considerations militate heavily against the grant of the injunction which is sought.