Kolya v Tax Practitioners Board

Case [2012] FCA 492

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 4.12
Cases 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 cited
Date 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
Appellant
AND:

TAX PRACTITIONERS BOARD
First Respondent

FEDERAL 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
Appellant
AND:

TAX PRACTITIONERS BOARD
First Respondent

FEDERAL COMMISSIONER OF TAXATION
Second Respondent

JUDGE:

FOSTER J

DATE:

11 MAY 2012

PLACE:

CANBERRA

REASONS FOR JUDGMENT

  1. 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. 

  2. 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. 

  3. On 3 April 2012, the appellant filed a…

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AGLC
Kolya v Tax Practitioners Board [2012] FCA 492
Case
[2012] FCA 492
Decision Date

CaseChat Overview and Summary

In the matter of Kolya v Tax Practitioners Board, the appellant sought relief from an earlier decision made by the Federal Court of Australia. The appellant, who had previously been rejected for transitional registration as a tax agent and had his registration as a BAS agent terminated by the Tax Practitioners Board, had sought a review by the Administrative Appeals Tribunal (AAT). The AAT upheld the Board’s decisions, finding that the appellant was not a fit and proper person to hold either registration. The primary judge subsequently dismissed the appellant's appeal against the AAT's decision. The appellant now appeals to the Full Court of the Federal Court, seeking relief in the form of an interlocutory injunction to stay the dismissal of his appeal and reinstate his registration as a BAS agent.

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

This morning the appellant has pressed for the relief which he claimed in his Interlocutory Application. In order to deal with that Application, it is necessary to make a few observations about the judgment in respect of which the appeal has been brought. THE JUDGMENT OF THE PRIMARY JUDGE The Tax Practitioners Board made two decisions adverse to the interests of the appellant. The first decision was that which was taken on 29 September 2010 to reject the appellant’s application for transitional registration as a tax agent and the second was that which was taken on 24 November 2010 to terminate his registration as a BAS agent. The appellant sought review by the AAT of both of those decisions. That review was, of course, a merits review. The AAT concluded that the appellant was not a fit and proper person to be registered either as a tax agent or as a BAS agent and affirmed the decisions which had been taken by the Tax Practitioners Board in relation to the appellant (Re Kolya v Tax Practitioners Board [2011] AATA 804). At [16]–[22] of his Reasons for Judgment, the primary judge explained the legislative scheme that governed the two registrations with which the AAT was concerned. It is not necessary to traverse that material in detail. The primary judge drew the appellant’s attention to the difficulties with the way in which he had framed his case before his Honour. This much is apparent from [4]–[15] of the primary judge’s Reasons for Judgment. The primary judge also drew the attention of the appellant to the fact that he had not challenged the fundamental finding made by the AAT that the appellant was not a fit and proper person to hold either of the registrations in question and that his failure to challenge this finding would very likely be an insurmountable difficulty for the appellant in the case which he sought to run before the primary judge. That is not to say, however, that a challenge to that finding could have been brought before the primary judge or, if brought, would have been successful. His Honour rejected the appellant’s contention that the AAT had failed to comply with s 43(2B) of the AAT Act which provides:(2B)Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. His Honour also rejected the appellant’s argument that he was deemed to be a registered tax agent by dint of the operation of the Tax Agent Services (Transitional Provisions and Consequential Amendments) Act 2009 (Cth). 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

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.