LVR (WA) PTY LTD (ACN 095 742 635) and CZ HOLDINGS PTY LTD (ACN 096 372 913) v ADMINISTRATIVE APPEALS TRIBUNAL and COMMISSIONER OF TAXATION
File number:
WAD 428 of 2011
Judges:
NORTH, LOGAN AND ROBERTSON JJ
Date of judgment:
22 June 2012
Catchwords:
ADMINISTRATIVE LAW – Administrative Appeals Tribunal – power of Tribunal to dismiss application without proceeding to review the decision – power where failure of applicants within a reasonable time to comply with a direction by the Tribunal – mandatory relevant considerations – applicants’ response to application to dismiss
ADMINISTRATIVE LAW – reasons of tribunal substantially copied without attribution from party’s written submissions – whether tribunal engaged in active intellectual process – whether constructive failure to exercise jurisdiction – failure to consider mandatory relevant considerations – applicants’ response to application to dismiss
PRACTICE AND PROCEDURE – obligations to court – model litigant obligations – obligation to inform court of source of decision-maker’s reasons where copied without attribution from party’s written submissions
In re Community Bank of Northern Virginia and Guaranty National Bank of Tallahassee Second Mortgage Loan Litigation, 418 F.3d 277 (2005) cited Janssen-Ortho Inc.…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading LVR (WA) Pty Ltd v Administrative Appeals Tribunal
LVR (WA) Pty Ltd sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) to dismiss an application for review. The dispute centred on whether the Tribunal had failed to consider a relevant affidavit and whether the Tribunal’s reasons were copied from a party’s submissions without attribution. The matter was heard in the Federal Court of Australia.
The primary legal issue before the court was whether the Tribunal had failed to take into account a relevant consideration, specifically the affidavit of Bernard Schokker, in making its decision. Additionally, the court needed to determine whether the Tribunal’s reasons for its decision were substantially copied from the party’s submissions without proper attribution, which would constitute a constructive failure to exercise jurisdiction. Another issue was whether the Tribunal failed to consider mandatory relevant considerations in dismissing the application.
In addressing these issues, the primary judge considered that the Tribunal had not necessarily failed to consider the Schokker affidavit despite not referencing it in its reasons. The judge found that the Tribunal had been referred to the affidavit in the parties' submissions and had considered it in reaching its conclusion. Regarding the Tribunal’s reasons, the judge held that while there was some similarity in language between the Tribunal's reasons and the party's submissions, it did not necessarily mean that the Tribunal had not engaged in an active intellectual process. However, the judge noted that the Tribunal's failure to acknowledge the source of the copied text was a procedural irregularity. Despite these findings, the judge concluded that the Tribunal's failure to mention the Schokker affidavit did not affect the outcome, as the Tribunal was entitled to rely on its own assessment of compliance with the directions.
The appeal was allowed, and the orders made by the primary judge were set aside. The decision of the AAT was quashed, and the matter was referred back for further consideration. The second respondent was ordered to pay the applicants' costs of and incidental to the application for judicial review, as well as the appellants' costs of the appeal.
Orders
Orders of the court
1. The appeal be allowed.
2. The orders made by Gilmour J on 6 October 2011 be set aside and the following orders made in their place:
(i) the application for an order of review of the decision of the first respondent made on 30 July 2010 (the decision) be allowed;
(ii) the decision be set aside;
(iii) the matter to which the decision relates be referred for further consideration by the first respondent;
(iv) the second respondent pay the applicants’ costs of and incidental to the application for an order of review, as agreed or taxed.
3. The second respondent pay the appellants’ costs of the appeal, 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
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Decision
Reasons for decision
On 30 July 2010 the Tribunal published its decision and reasons for decision.The judgment of the primary judge The primary judge set out the grounds for review. As we have noted, a single ground only remains: failing to take into account a relevant consideration, namely the responsive content of the Schokker affidavit. The primary judge then set out the relevant law, including reference to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 (Rezaei); Singh v Minister for Immigration and Multicultural Affairs [2006] FCA 1113 (Singh) at [22]-[34]; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [82]. There does not appear to have been any controversy before the primary judge as to these matters and there was no such controversy before the Full Court. The primary judge considered the issue of the Schokker affidavit as follows: [25] The applicants assert that the Tribunal failed to take account of the affidavit of Bernard Schokker sworn 21 June 2010 (the Schokker affidavit). [26]In the Decision the Tribunal does not refer at all to this affidavit. It was filed in response to the affidavit of Sandro Gianni Mancini sworn on 31 May 2010 (Mancini Affidavit). Mr Mancini is an Audit Leader/Senior Auditor employed by the Commissioner in the Complex Audit area of the Compliance Section in the Goods and Services Tax Business line of the Australian Taxation Office. His affidavit including annexures comprises 161 pages. The applicants submit that the structure and text of the Reasons for Decision indicates the Tribunal did not take the Schokker Affidavit into account. They refer, in particular, to the following paragraphs in the Reasons for Decision: paragraphs 6 (lists only affidavits filed by the Commissioner); 9 (chronology does not mention the Schokker Affidavit, ending rather with the Mancini Affidavit); 25 (suggesting applicants have failed to challenge specific points as to the elements of non-compliance and failed to attempt any point by point response but cf Schokker Affidavit); 37 (granted opportunity to provide affidavit evidence); 48; and 50-55.[27] This they say is the position despite:(a)the Tribunal referring to and relying on the Mancini Affidavit in concluding that there was ‘continuing non-compliance with the Relevant Directions’;(b)the relevance of evidence challenging the specific allegations of non-compliance and in opposition to the application to dismiss, as referred to by the Tribunal itself; and(c)the Schokker Affidavit being before the Tribunal at the time of the hearing.[28]The Commissioner submits that these matters relied upon by the applicants do not support their contentions that “the structure and text of the Tribunal’s decision” indicates that the Tribunal did not take the Schokker affidavit into account because:1.para 6 of the Tribunal’s Reasons for Decision is merely listing the sources of the relevant Chronology;2.para 25 of the Tribunal’s Reasons for Decision refers only to the applicants’ submissions, not to the applicants' evidence. What it says about the applicants' submissions is entirely accurate;3.para 37 of the Tribunal’s Reasons for Decision is no more than a statement of the procedural fairness which had been afforded to the applicants by the Tribunal;4.para 48 of the Tribunal’s Reasons for Decision has nothing to do with the Schokker affidavit;5.paras 50-55 of the Tribunal’s Reasons for Decision do no more than indicate that the Tribunal accepted (as it was entitled to do so) Mr Mancini’s evidence in concluding that what the applicants had filed did not comply with the Tribunal’s directions. In addition to the affidavit evidence the Tribunal also had access to the filed document (sic) themselves in reaching that conclusion;6.in particular, paras 53-55 discuss the applicants’ failure to file a Master Index which complied with the Relevant Directions. The Schokker affidavit does not address the issues of non-compliance discussed in those paragraphs.[29]The absence of any reference to the Schokker affidavit in the Reasons for Decision in my view does not mean that the Tribunal did not take it into account.[30]The Commissioner makes the following submissions which I accept. The Tribunal was referred to the Schokker affidavit in both the oral and written submissions of the parties. For example, the Schokker affidavit was discussed in paras 70 and 71 of the Commissioner’s written submissions dated 23 June 2010 and the Tribunal was referred to the Schokker affidavit by counsel in oral argument when numerous submissions were made in respect of the affidavit. At paras [21]-[27] of the Reasons for Decision the Tribunal summarises the contentions made by the applicants in opposition to dismissal by reference to the applicants’ written submissions. In paras [22]-[25] of the Tribunal’s Reasons specific reference is made to the assertions in the applicants’ submissions before the Tribunal that the applicants had complied with the Relevant Directions. The applicants’ submissions before the Tribunal (in para 3) refer to the Schokker affidavit as part of the basis to support their contention that they had complied with the Relevant Directions.[31]The Schokker affidavit is descriptive of the documents to which it refers. It is assertive to the extent that Mr Schokker states at [9] that “the applicants have filed the requested documents in accordance with the directions of the Tribunal.”[32]There is no obligation on the Tribunal to mention or discuss in its Reasons for Decision every piece of evidence which is before it: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46].[33] The Tribunal, as author of the Relevant Directions, was well able to assert (sic) for itself whether these directions had been complied with by the applicants. It found that there had not been due compliance.The Full Court hearing