Little Monster Productions Pty Ltd and Screen Australia Pty Ltd (Practice and procedure)
[2025] ARTA 1899
•24 September 2025
Little Monster Productions Pty Ltd and Screen Australia Pty Ltd (Practice and procedure) [2025] ARTA 1899 (24 September 2025)
Applicant/s: Little Monster Productions Pty Ltd
Respondent: Screen Australia Pty Ltd
Tribunal Number: 2024/1156
Tribunal:General Member R Smith
Place:Adelaide
Date: 24 September 2025
Decision:The Tribunals earlier decision dismissing the application for review is of no effect. The decision of the Respondent under review is affirmed.
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General Member R Smith
Catchwords
PRACTICE AND PROCEDURE – application for review withdrawn – application to reinstate – whether application for review dismissed in error – meaning of error – whether dismissal vitiated by jurisdictional error – dismissal following withdrawal a nullity – dismissal no legal effect
TAXATION – producer tax offset - Qualifying Australian Production Expenditure – determination of a separate question - whether expenditure incurred – agreement did not identify due date – if incurred, whether expenditure was excluded – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975, s 33
Administrative Review Tribunal Act 2024, ss 70, 79, 95, 102, 105, 172, 174
Income Tax Assessment Act 1953, 375-135Cases
ADPA v Minister for Immigration and Boarder Protection (Citizenship) [2015] AATA 603
Brehoi v minister for Immigration and Multicultural Affairs (1999) 58 ALD 385; [1999] FCA 772
Diallo v MIAC [2009] FMCA 642
Director-General of Social Services v Chaney [1980] FCA 87; (1980) 3 ALD 161
Goldie v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 367; (2002) 121 FCR 383
JTBJ and Secretary, Department of Social Services (Social Security) [2025] ARTA 464
Katterns v Comcare [2002] FCA 1366
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA; (2002) 209 CLR 597Mora [2016] AATA 4198
Pratten v Commissioner of Taxation [2025] FCA 749;
Re Michael and Secretary, Department of Employment, Science and Training (2006) 90 ALD 457; [2006] AATA 227
RPPL Pty Ltd v Commissioner of Taxation [2025] FCA 1126
WAKN v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 398
Statement of Reasons
Little Monster Productions Pty Ltd (Little Monster or the Applicant) has asked the Tribunal to reinstate the review proceedings that were withdrawn on 31 January 2025. If the Tribunal’s view is that Little Monster is not permitted to seek this relief, then the Applicant requests the Tribunal grant an extension of time to file a further application seeking review of Screen Australia’s (the Respondent) original decision.
RELEVANT BACKGROUND
The review proceeding relates to the eligibility of the Applicant to the Producer Offset which is a refundable tax offset calculated on a film project’s qualifying Australian expenditure (QAPE). Screen Australia (the Respondent) administers the Producer Offset under Division 376 of the Income Tax Assessment Act 1997 (ITAA 97).
Upon receipt of an application, if Screen Australia is satisfied the film meets the requirements of the ITAA 97, it will issue a final certificate and determine the applicant’s total QAPE. The Respondent then provides the final certificate and QAPE determination to the Australian Taxation Office (ATO) and the ATO calculates the Producer Offset based on the Respondent’s QAPE determination. The ATO then applies the Producer Offset against the Australian tax liability for the income year in which the project was completed and refunds any remainder to the applicant.
Little Monster is a film producer. In 2023, the Applicant produced and released the film Don’t Go Below (the Film).
The sole director of the Applicant is Megan Williams (Ms Williams). Ms Williams together with her husband Matthew Drummond (Mr Drummond), are also shareholders. Ms Williams does not take part in the day-to-day management of the company, those functions having been assigned to Mr Drummond.
Post -production services were provided to Little Monster by Hive Studios International Pty Ltd (Hive). Mr Drummond is the sole director of the company and a shareholder with Ms Williams.
Two documents were executed by the Applicant and Hive in respect of the Film. The first was an agreement titled ‘Film Post Production Services Agreement’ (Services Agreement). In accordance with this document, the fee for the services was the sum of $6,672,720 (Fee). The second was an agreement titled ‘Production Investment Agreement’ (Investment Agreement) which provided that Hive would invest $7,454,519 to assist with the production of the Film.
On 12 April 2023, Little Monster applied to the Respondent for a final certificate in relation to the Producer Offset for the Film with a claimed QAPE expenditure of $7,764,713 and total film expenditure of $7,785,829. On 22 February 2024, Screen Australia issued a final certificate to the Applicant for the Film in the amount of $1,079,383.
Little Monster applied to the Tribunal for a review of the decision of the Respondent. The parties identified that determination of the review involved consideration of three issues:
(i)Whether the Reviewable QAPE Amounts[1] have been incurred by the Applicant (Issue 1);
(ii)Whether, if any or all the Reviewable QAPE Amounts have been incurred by the Applicant, those amounts are excluded from the Applicant’s production expenditure pursuant to section 376-135, items 6,7 and/or 9 of the ITAA 97 (Issue 2); and
(iii)If the Reviewable QAPE Amounts were incurred and production expenditure, whether the Reviewable QAPE amounts exceed the amount(s), if any, that would have been incurred had the Applicant and Hive Studios been dealing with one another at arms length, for the purposes of s 376-175 of the ITAA (Issue 3)
[1] As defined in the table at paragraph 31 of Applicant’s Statement of Facts Issues and Contentions dated 7 May 2024. The Reviewable QAPE amount is $6,684,737.18.
The parties requested the Tribunal determine Issue 1 and Issue 2 as separate questions. The parties further agreed that Issue 3 only required determination should Issue 1 and Issue 2 be determined (wholly or in part) in the Applicant’s favour.
On 18 November 2024, the Tribunal heard the separate questions. On 9 January 2025, the Tribunal determined that it’s answer to the first separate question was ‘no’ and it was not necessary to answer the second separate question. A statement of reasons was prepared and provided to the parties.
On 10 January 2025, the Tribunal decision in respect of the separate questions was provided to the parties with an email in the following terms: ‘Please find attached the Tribunal’s decision in respect of the separate questions for determination. Could the parties please confer and advise their availability for a direction hearing in the week beginning 20 January 2025 to determine the next steps.’
In response to that communication, on 15 January 2025 the Respondent provided their availability for a directions hearing. They also advised: ‘In case it has a bearing on the need for any further direction hearing, we also note that the parties are agreed that, subject to any appeal, the Tribunal’s answers to the separate questions would lead to the Tribunal affirming the Respondent’s original decision.’
On the same date the Applicant contacted the Tribunal to clarify the purpose of the directions hearing following determination of the separate questions. The Tribunal provided the following response:
I spoke to a solicitor from your firm earlier today and confirm I have conferred with the Member regarding why the parties have been requested to provide their availability for a Telephone Directions Hearing. I am under instructions to advise that the hearing undertaken on 18 November 2024 and the decision that was handed down on 10 January 2025 was in relation to a separate preliminary question and not to the substantive reviewable decision before the Tribunal.
The Applicant did not make any submissions in relation to any orders or directions for the Tribunal to make in the absence of the separate question thus the Tribunal was taking a conservative approach by inviting the parties to a Telephone Directions Hearing to discuss how to proceed with the finalisation of this matter.
We confirm that it is open for the parties to either reach agreement under section 103 of the Administrative Review Tribunal Act 2024, or that the Applicant may withdraw their application, or that the Member can proceed to issue a final decision in this matter referring to the reasons as set out in the decision dated 10 January 2025.
The Tribunal will await the parties' response in relation to the above.
The Respondent replied to that email confirming the Tribunal should proceed to issue a final decision affirming Screen Australia’s original decision (consistent with [127] of the Tribunal’s reasons) and no other directions were sought.
On 28 January 2025, the Applicant sent the following email to the Tribunal:
Dear Associate,
We refer to your correspondence of 15 January 2025 below regarding why the parties have been requested to provide their availability for a Telephone Directions Hearing.
The Applicant agrees with the Tribunal that the hearing undertaken on 18 November 2024 and the attached preliminary decision, which was dated 9 January and handed down on 10 January 2025, was in relation to separate preliminary questions, but does not constitute the substantive reviewable decision before the Tribunal. We are of the view that, as a result, there are substantial merits matters and application of correct principles which have not been considered in the proceedings. Without these matters being considered properly, it would mean that the Applicant has not yet been afforded fair procedure and fair access to a merits review of the Original Decision.
The Applicant references the attached preliminary Decision and Reasons of General Member R Smith dated 9 January 2025 in connection with the Preliminary Questions (“Preliminary Reasons”). The Applicant notes that, while the intention of the Preliminary Reasons was to assist the parties and Tribunal to settle the matter expediently, the assumptions upon which the parties agreed the Joint Submissions on Separate Questions have materially changed, detrimentally and unfairly to the interests of the Applicant, at a late stage in the current proceedings.
We submit that the Separate Question did not enable the Tribunal to consider the substantial evidence to fairly review the Original Decision given the complexity of the transaction and technical legislative elements that must be considered to make a Producer Offset decision.
As such, the Applicant requests the Tribunal to proceed with a merits review of the Original Decision in its full substance.
The Applicant attaches some further submissions (and supporting documents) to assist the Tribunal to make the correct reviewable merits decision in this matter.
The Applicant respectfully requests that the Tribunal consider such submissions and advise whether any change to its decision and/or Preliminary Reasons would be made as part of the reviewable merits decision to be made in this matter, and in any event, allow the Applicant 5 business days to consider our instructions as to whether the Applicant intends to appeal (or to advise the Tribunal as to the alternative choices outlined in your correspondence below) prior to publishing any final Reasons and/or determination of this matter.
We note that, given counsel for the Applicant has been away, the attached has not been prepared with the assistance of counsel for the Applicant.
The Applicant is of course amenable to allowing the Respondent an adequate time to respond to the attached.
Please advise whether a Telephone Directions Hearing is required this week or to be scheduled at a later date once the attached Applicant submissions are considered?
On the same day (and in response to the Applicant’s email to the Tribunal), the Respondent stated:
The Respondent notes that the Applicant’s submissions of today, purportedly made in response to the Tribunal’s email of 15 January 2025, seek in substance to reopen the issues already determined by the Tribunal following the hearing of the preliminary questions.
The Respondent’s position is that the Tribunal’s determination of the preliminary questions must result in the Tribunal formally affirming the Respondent’s original decision (consistent with [127] of the Tribunal’s reasons delivered on 10 January 2025).
There is no basis for the Tribunal to reopen its consideration of the preliminary questions. To the extent the Applicant takes issue with the Tribunal’s decision, the proper course is for it to consider any available rights of appeal.
This email is copied to the Applicant’s solicitors.
On 30 January 2025, the Tribunal referred to the emails received and confirmed that it would not be reopening the issues ventilated as part of the separate question for further consideration. The matter was listed for a directions hearing on 31 January 2025.
Both parties were represented by their solicitors at the directions hearing. A number of issues were canvassed, and the Tribunal adjourned the matter for one week to 7 February 2025. The purpose of the adjournment was to allow the Applicant to consider an application for a confidentiality order and a potential appeal. The Tribunal confirmed with the parties the decision on the separate question disposed of the review but deferred making a decision reflecting this to another day.
Later that day, the Applicant sent an email to the Registry withdrawing the application for review. In that communication, the Applicant advised:
We understand the effect of such withdrawal, which can be made at any time pursuant to s.95(1) of the ART Act, per the attached ART Fact Sheet, is that “the Tribunal is taken to have dismissed the application” and the Tribunal “cannot take any further action on the application for review”. This would include the public communication of the reasons on the Preliminary Questions.
This should avoid the parties in unnecessary costs involved in any s.70 ART Act confidentiality order application.
Please confirm this now puts the matter at and end.
On 6 February 2025, the Tribunal confirmed receipt of the withdrawal, and that the application was dismissed.
On 4 March 2025, the Applicant sent an email to the Respondent requesting they make an application to reinstate the proceedings. That email, in part, stated the following:
Our client withdrew the application on the basis that, while it was dissatisfied with the Tribunal’s decision on 9 January 2025 (Tribunal’s decision), and for the reasons we outlined to you and the Tribunal prior to our client’s withdrawal, our client at the time did not have funds to bring an appeal from that decision.
Since that time, our client has reached an agreement with a third party funder to appeal from the Tribunals decision. That agreement was made yesterday.
Accordingly our client wishes to reinstate the proceedings so that that Tribunal may make final orders based on the Tribunal’s decision.
However, according to ss 102(7), and (8) of the ART Act, our client may not be permitted to reinstate the proceedings that is because our client withdrew its application your client is in a different position under s. 102(7) of the ART Act and is permitted to apply to reinstate the proceedings and also having regard to s 56 of the ART Act in all the circumstances.
We request that your client make their application to reinstate the proceedings. In that regard please bear in mind that any application to reinstate the proceedings must put more report within 28 days after the parties were notified the proceedings. That is 28 days after 6 February 2025 being 6 March 2025. If an application is made after that time, special circumstances are required.
If your client does not make the application our client will run this letter and your response from seeking an alternative remedy that is our client will seek leave under s 19 of the ART Act to extend the time to file an application to review Screen Australia's original decision. In doing so our client does not wish to relitigate the present proceedings. Rather our client will do so solely for the purpose of challenging the Tribunal’s previous decision to affirm screen strategies initial decision. In that regard our client would agree to accept the tribunals decision applies to its new proceedings.
On 6 March 2025, Screen Australia confirmed that it had not, and did not intend to make an application for reinstatement of the proceedings.
On 1 April 2025, the Applicant filed an application for reinstatement of the proceeding. An interlocutory hearing was conducted on 3 July 2025. Both parties appeared and made oral submissions. The parties were given an opportunity to file further written submissions and did so on 17 July 2025.
The Tribunal listed the application for a further interlocutory hearing on 19 August 2025. This was to allow the Tribunal to clarify the Applicant’s case and to hear further from the parties. This was primarily because the Applicant’s written submissions raised new arguments in support of the application for reinstatement.
THE APPLICATION FOR REINSTATEMENT
Issue for determination
The question the Tribunal now needs to determine is whether the application for review should be reinstated under s 102 of the ART Act or any other legal basis. This requires the Tribunal to determine:
(i)what errors fall within s 102 of the ART Act;
(ii)the error the Applicant says was made giving rise to the dismissal;
(iii)whether that error falls with s 102 of the ART Act;
(iv)if the error does fall within the scope of s 102 of the ART Act, whether there are any discretionary factors militating against reinstatement;
(v)If the error does not fall within s 102 of the ART Act, whether the review can be revived on any other legal basis.
In the event the Tribunal is satisfied the review should be reinstated under s 102 of the ART Act or any other legal basis, then the Tribunal also needs to determine what orders and directions are appropriate in the application for review.
The legislative provisions
Section 102 of the ART Act prescribes the conditions under which an application may be reinstated.
An applicant is entitled to withdraw their review, the immediate consequence of which is set out in s 95(2) of the ART Act, namely that ‘the Tribunal is taken to have dismissed the application’. If proceedings are withdrawn and dismissed, they can only be resumed in the limited circumstances defined in the ART Act. Section 102(8) of the ART Act prevents an applicant from applying for reinstatement in circumstances where the application was dismissed under s 95 following a withdrawal.
Notwithstanding this, s 102(8) is not a complete bar to the Tribunal reinstating a matter if it was dismissed under s 95. Starting at s 102(2), the ART Act provides as follows:
Tribunal may reinstate on its own initiative
(2) If the Tribunal considers that the application was dismissed in error, the Tribunal may on its own initiative reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.
(3) Despite subsection (2), the Tribunal must not reinstate an application under subsection (2) if the application was dismissed under section 96 (Tribunal may dismiss application if parties consent).
(4) Despite subsection (2), if more than 28 days have passed since the application was dismissed, the Tribunal must not reinstate the application under subsection (2) unless the Tribunal is satisfied that special circumstances justify reinstating the application.
Party may apply for reinstatement if application dismissed in error
(5) A party to the proceeding in relation to the application may apply to the Tribunal for reinstatement of the application on the grounds of error within 28 days after the party receives notice that the application is dismissed (or such longer period as the Tribunal, in special circumstances, allows).
(6) If a party applies under subsection (5) and the Tribunal considers that the application was dismissed in error, the Tribunal may reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.
Proceedings which have been withdrawn by an applicant may therefore be reinstated by the Tribunal on its own initiative or following an application by a party, if the proceedings were ‘dismissed in error’. If the application is made more than 28 days after the dismissal, then the Tribunal must also be satisfied special circumstances justify the reinstating.
What errors fall within s102(6) of the ART Act?
In the matter of JTBJ and Secretary, Department of Social Services (JTBJ) [2], the President of the Tribunal recently reviewed the cases[3] which have considered the expression ‘dismissed in error’ and summarised the types of errors that fall within subsection 102(6) of the ART Act.[4] Relevant principles that can be distilled from Kyrou J’s analysis include:
·Errors are not confined to administrative errors or errors on the part of the Tribunal. There is no textual limitation on what might constitute an error but for the fact the Tribunal has dismissed the application, and the error induced the dismissal;[5] and
·The provisions only apply to default or summary dismissals and not where there has been prima facie consideration of the merits of the application.
[2] [2025] ARTA 464 at [24]
[3] The cases reviewed were Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385; [199] FCA 722; Goldie v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 367; (2002) 121 FCR 383 (Goldie); Katterns v Comcare [2002] FCA 1366; Minster for Immigration and Multicultural Affairs v Bhardwaj ([2002] HCA 11; (2002) 209 CLR 597 (Bhardwaj); Mora[2016] AATA 4198; and Re Michael and Secretary, Department of Employment, Science and Training (2006) 90 ALD 457
[4] At [25] to [39]
[5] See Goldie at [29]
The President of the Tribunal also noted the following as examples the kind of errors identified by the Courts as falling within the predecessor provision:
·Where an application for review has been dismissed due to a significant procedural error;
·Where the application for review is dismissed by consent when the applicant has not actually consented or misunderstood the consequences of consent such that it was not true consent;
·Where the review is dismissed when an applicant does not appear at a Tribunal event and the applicant did in fact appear, or no notice was given to the applicant or the notice was defective
Kyrou J did not agree that that an operative error, for the purposes of s 102 could include an error of law such as a failure to afford procedural fairness to a party.[6]
[6] at [46].
Was there an error in the dismissal?
The dismissal followed receipt of an email from the Applicant on 31 January 2025 which the Tribunal regarded as notice of Little Monster’s wish to withdraw the proceedings. The registry officer gave effect to the Applicant’s written instructions according to their terms and there was no need for a member of the Tribunal to make an order.
A person who voluntarily withdraws from proceedings cannot take up the review where they left off simply because they changed their mind. The dismissal in this case was as a consequence of the Applicant’s voluntary election to withdraw its application. It is apparent from the contemporaneous communications with the Tribunal advising of the withdrawal and the reasons provided in the reinstatement application, the decision to withdraw was with the informed consent of the Applicant. Little Monsters was unable to fund an appeal and did not want the Tribunal reasons on the separate question published. The Applicant withdrew the review in order to prevent the Tribunal from taking any further steps in the proceeding.
The Applicant has now entered into an arrangement with a litigation funder. Although the Applicant may now regret the decision to withdraw, this is an error of judgment and not an error in the dismissal within the meaning of s102 (6) of the ART Act.
In the reasons accompanying the Applicant’s application, Little Monsters originally argued the relevant errors were contained within the statement of reasons accompanying the Tribunal determination on the separate questions. The ‘manifest errors’ identified went to both the factual findings of the Tribunal and the application of the law to those facts. The errors as described by the Applicant in the original reinstatement application are not errors in the dismissal of the proceeding but rather in the Tribunal’s determination of the separate questions and therefore do not fall within the scope of s 102(6).
In their written submissions and at the second hearing on the reinstatement application, the Applicant argued the error was in the Tribunal suggesting, and then accepting and giving effect to the Applicant’s notice of withdrawal. They contended that following determination of the separate questions, the Tribunal was functus officio and ought to have made orders affirming the decision of Screen Australia under s105 of the ART Act. It was that error of the Tribunal that resulted in the dismissal.
The Respondent says the Tribunal was not functus officio at the time the Applicant submitted its notice of withdrawal because the Tribunal had not yet exercised its jurisdiction under s 105 to finally determine the substantive application. There was therefore no error in the dismissal.
Section 79 of the ART Act, as well as the predecessor provision the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)[7] empower the Tribunal to give directions ‘as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal …’ The broad authority bestowed on the Tribunal in respect to procedure permits the Tribunal to hear preliminary or particular issues separately from the main body of the hearing so long as it does not cut across the statutory duty to undertake a proper merits review.[8] If exercised correctly, determination of a preliminary or separate issue may reduce time, costs and complexity for the parties.
[7] s 33 of the AAT Act
[8] See for example WAKN v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 398 at [41]
In resolving a separate question, the Tribunal is determining a discrete legal or factual issue that goes to part of the review. The decision in respect of the separate question is binding in the proceeding, but is not itself a final decision. Whether the Tribunal should go on to make a final decision under s 105 of the ART Act depends on whether the separate question disposed of the whole matter or if there are any residual issues for consideration.
In the circumstances of this case, although the Tribunal noted at [127] in the statement of reasons, that following its answer to the first separate question that “the decision under review must be affirmed”, it did not make a formal order under s 105 of the Act. The failure to do so meant the Tribunal had not properly discharged is statutory function falling into error.
On 28 January 2025, the Applicant requested the Tribunal reconsider its position in respect of the separate questions and filed detailed written submissions highlighting the errors in the reasoning of the Tribunal outlined in the statement of reasons. It is unlikely the Applicant would have made this request if the Tribunal had made a decision under s 105 of the ART Act to affirm the decision under review when determining the separate questions.
On 30 January 2025, the Tribunal advised the parties it would not be reopening consideration of the separate questions and if a party is dissatisfied with the Tribunal’s decision, they may exercise their right of appeal.
At the directions hearing on 31 January 2025, the Tribunal confirmed with the parties the Tribunal determination of the separate questions disposed of the review. A formal decision reflecting this was deferred to another day.
Following the directions hearing, the Applicant sought to withdraw the proceedings. Although s 95 of the ART Act provides that an application may be withdrawn at any time, if the Tribunal has reviewed and made a decision in respect of that application, there is nothing left to be withdrawn.
In this case, there had been a hearing on the merits as defined by the separate questions. In circumstances where the determination of the separate questions disposed of the review in its entirety, the Tribunal should have affirmed the decision of the Respondent at that time. There were no residual issues for consideration.
Although the Applicant had foreshadowed an application for a confidentiality order at the directions hearing on 31 January 2025, the power of the Tribunal to make an order under s 70 remains even if the Tribunal has made a decision under s 105 of the ART Act on review.[9] This was not a residual matter preventing the finalisation of the proceeding.
[9] ADPA v Minister for Immigration and Boarder Protection (Citizenship) [2015] AATA 603
The Tribunal accepts that its error produced the environment in which the Applicant was able to lodge the withdrawal. However, it does not accept the error induced the dismissal. Little Monsters’s communications at the time confirmed the decision to withdraw was informed and motivated by the desire to avoid publication the Tribunal’s reasons in respect of the separate question. Where the dismissal follows the conscious voluntary election by the Applicant it cannot be said to have been dismissed in error, even if the Tribunal’s oversight made that course procedurally possible.
In JTBJ, the President of the Tribunal was not persuaded that errors that fall within s102 of the ART Act extend to errors of law. Adopting this approach, the error in this case would not enliven the reinstatement provisions.
Even if the jurisdictional error of the Tribunal is not captured by the reinstatement provisions, the common law has recognised that the Tribunal may be able to reopen a decision where the Tribunal decision involved jurisdictional error.
In the matter of Bhardwaj v Minister for Immigration and Multicultural Affairs (Bhardwaj) [10] the court observed that a tribunal may identify as a matter of fact that it has fallen into jurisdictional error and that self-identification may lawfully permit the tribunal to reopen a previous decision that it has concluded, for that reason, to be a nullity. The Administrative Appeals Tribunal has considered the Bhardwaj principle in a number of decisions. The ART has also recently considered the principle in JTBJ.
[10] [2002] HCA; (2002) 209 CLR 597
The Tribunal cannot reopen a decision applying the Bhardwaj principle because of errors within jurisdiction such as a factual error, where evidence is not referred to in the statement of reasons or because the decision maker has changed their mind.[11] The error of the Tribunal in this case does not fall within one of these categories.
[11] Minster for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [149] (Hayne J) and [164] (Callinan J).
It would also be inappropriate to reopen a decision where the matter was the subject of a judicial review application.[12] This issue does not arise in this case.
[12] Diallo v MIAC [2009] FMCA 642 at [5]
The Tribunal has emphasised exercising extreme caution before applying the Bhardwaj principle.[13] The Tribunal should consider treating an earlier decision as a nullity only if the existence of jurisdictional error in its earlier decision is obvious, and there are no plausible countervailing considerations weighing against doing so, including but not limited to fairness to the parties.[14]
[13] Re Michael and Secretary, Department of Employment, Science and Training [2006] AATA 227 at [17]
[14] Mora [2016] AATA 4198 at [17]
In JTBJ, the Tribunal did not discharge its function in determining the Tribunal’s jurisdiction and this error was of such a fundamental nature that it engaged the very strict Bhardwaj principle.
Section 105 of the ART Act provides that after conducting a review, the Tribunal is to make a decision affirming, varying or setting aside the decision under review and where appropriate, substituting a new decision or remitting the matter back to the decision maker for reconsideration. The statutory design of the ART Act assumes the Tribunal will, once the evidence and submissions are received, dispose of the proceeding by way of a final decision that resolves the issues between the parties.
In this case, the matter proceeded in an unusual manner. Rather than determining all the issues together, the parties requested, and the Tribunal agreed, to determine Issue 1 and Issue 2 as separate questions. By dealing with the review in this way, there would only be a residual issue for determination (Issue 3) should the Tribunal decide the separate questions favourably to the Applicant.
The Tribunal’s answer to Issue 1 was ‘no’ which resolved the substantive controversy between the parties. Had the application run the usual course and all extant issues determined concurrently in the one hearing, the Tribunal’s conclusion in respect of Issue 1 would have resulted in the Tribunal making a final decision under 105 of the ART Act affirming the Respondent’s decision. It was the use of the uncommon process which led to the oversight.
The Tribunal’s determination of the separate questions was treated as an end in itself. without the consequential final decision. The proceeding was then in anomalous position where there existed a determination of a separate question but not the final decision that should have followed. The Tribunal’s function under s 105 of the ART Act had not yet been formally discharged despite the fact that the material facts and issues had been determined such that the Respondent’s decision should be affirmed.
This did not arise from the parties’ failure to advance their case but from the procedural path taken which diverged from the normal process contemplated by the ART Act. The circumstances leading to the error were on this basis exceptional, unusual and of such a fundamental nature as to engage the Bhardwaj principle.
The decision to dismiss the review following the withdrawal was a nullity. Had the Tribunal discharged its statutory task and made a decision under s 105 of the ART Act, there would have been no application capable of being withdrawn and therefore dismissed by the Tribunal. The dismissal decision was infected by jurisdictional error and accordingly is entitled to be regarded by the Tribunal as no decision in law.
The Respondent argued in the context of the reinstatement/ extension of time application that resurrection of the proceeding would be an abuse of process as it would result in the relitigating of issues already determined by the Tribunal. It would also permit the Applicant to circumvent the statutory deadline in s 174(1) of the ART Act. These may militate against adopting the Bhardwaj principle.
The Applicant is not seeking to reopen for further consideration the separate questions. All that would occur is the Tribunal would make the decision it should have made under s 105 of ART consistent with its response to the separate questions. There would not be a relitigating of issues already decided by the Tribunal. Further, the substantive decision is wholly favourable to the Respondent.
It is accepted that should the Tribunal treat the dismissal as a nullity and go on to affirm the Respondent’s decision, the Applicant will be able to exercise a right of appeal. The practical consequence of this is the Applicant has had the benefit of the Tribunal’s statement of reasons on the separate questions since January 2025.
The Applicant took the first steps to resurrect the proceedings on 4 March 2025, approximately one month after the Tribunal confirmed the dismissal when it emailed the Respondent requesting a reinstatement. The reinstatement application was filed 1 April 2025. Most of the delay is not attributable to the Applicant.
Section s172(1) of the ART Act confers a right of appeal on a question of law, from the decision of the Tribunal in the proceeding. Section 172 has been considered recently by the Federal Court, In particular, the significance in the change in the language between 172(1) of the ART Act and s 44(1) of the AAT Act.[15]
[15] Pratten v Commissioner of Taxation [2025] FCA 749; RPPL Pty Ltd v Commissioner of Taxation[2025] FCA 1126
As SC Derrington J observed, the effect of the change in wording as between s 44(1) and s 172(1), clarifies that it is generally the final decision in a proceeding that may be appealed, as held in Director-General of Social Services v Chaney (Chaney).[16] In the usual course, this would be a decision under 105 of the ART Act.
[16] [1980] FCA 87, (1980) 3 ALD 161
It was the acceptance of the withdrawal and the dismissal by the Tribunal which resulted in the interference with the Applicant’s appeal rights. Had the Tribunal discharged it statutory task and made a decision under 105 of the ART Act when determining the separate question, there would not have been an application capable of being withdrawn and then dismissed by the Tribunal. Although the dismissal was as a consequence of the voluntary action of the Applicant to withdraw the review, this does not undo or negate the jurisdictional error of the Tribunal that allowed the dismissal to occur. It was the error of the Tribunal that interfered with the appeal consequences, including the statutory deadline in s 174 of the ART Act.
Reopening the matter is consistent with both the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and promoting public trust in its decision-making.
The Tribunal is satisfied that in the circumstances the Tribunal’s earlier decision dismissing the application for review is of no effect. It is not necessary to consider the application to extend the time to file a review.
DECISION IN THE REVIEW
Noting the earlier dismissal decision is of no effect, it is appropriate for the Tribunal to correct the oversight leading to jurisdictional error and discharge its statutory function under s105 of the ART Act.
On 9 January 2025, the Tribunal decided that the Reviewable QAPE amounts had not been incurred by the Applicant and the answer to the first separate question (Issue 1) was ‘no’. In respect of Issue 1, the Tribunal concluded:
·the Fee for the post production services covered by the Services Agreement had not been paid or otherwise discharged by the Applicant;
·the payment clause in the Services Agreement did not set out any terms or conditions of payment and so there was not a presently existing obligation which had been definitively committed to by the Applicant; and
·even if there was an obligation to pay, it was contingent upon the receipt of the gross receipts of the Film and therefore not a presently existing liability.
The Tribunal observed that it was not necessary to determine the second question, but should it be wrong about whether the expenses had been incurred, the Reviewable QAPE amounts would otherwise be excluded from the Applicant’s production expenditure. In respect of Issue 2, the Tribunal concluded the Fees were not production expenditure and not QAPE by reason of the fact that were deferments or profit participation for the purposes of s 376-135 of the ITAA 97.
As a consequence of the Tribunal’s answer to the first separate question, namely that the Reviewable QAPE had not been incurred by the Applicant, the decision under review should be affirmed. Detailed reasons for the decision are contained in the statement of reasons provided to the parties on 10 January 2025.
Date(s) of hearing: 3 July 2025 and 19 August 2025 Counsel for the Applicant: Mr S Balafoutis SC Solicitors for the Applicant: DWA Law Counsel for the Respondent: Mr C Peadon Advocate for the Respondent: Simpsons
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