Mathews v Thompson

[1998] HCATrans 107

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B8 of 1997

B e t w e e n -

RUSSELL GORDON HAIG MATHEWS

Applicant

and

KEVIN MARK THOMPSON

Respondent

Application for special leave to appeal

BRENNAN CJ
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 17 APRIL 1998, AT 10.44 AM

Copyright in the High Court of Australia

MR R.G. H. MATHEWS:   Good morning, your Honours.  I will be as brief as I can in this matter.

MR R.V. HANSON, QC:   If the Court please, I appear with my learned friend, MR P.J. FLANAGAN, for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

BRENNAN CJ:   Yes, Mr Mathews.

MR MATHEWS:   Thank you, your Honours.  I will be as brief as I can in this matter.  The obiter in Forbes Case at page 277 ‑ ‑ ‑

BRENNAN CJ:   Let us just start at the beginning.  You are convicted of taking a fee while unregistered.

MR MATHEWS:   Yes, your Honour.

BRENNAN CJ:   Were you unregistered?

MR MATHEWS:   I believe the decision of the Tax Agents Board was ‑ ‑ ‑

BRENNAN CJ:   I know what you believe about the decision of the Tax Agents Board, but were you unregistered?

MR MATHEWS:   According to the Tax Agents Board, they reckoned I was, yes, your Honour.

BRENNAN CJ:   And did you take the fee?

MR MATHEWS:   Yes, your Honour.

BRENNAN CJ:   Then that is the end of it, is it not?

MR MATHEWS:   In fact, your Honour, I believe that the decision of the Tax Agents Board was a nullity.

BRENNAN CJ:   I understand that.  But even if it were, did you have a licence?  Were you registered?

MR MATHEWS:   It comes back to the point of law, your Honour, whether a nullity is a nullity or not, or whether a nullity is ‑ ‑ ‑

BRENNAN CJ:   Assume it is a nullity.

MR MATHEWS:   Beg your pardon, your Honour?

BRENNAN CJ:   Let us assume it is a nullity.  Were you registered?

MR MATHEWS:   If it was a nullity.  I was registered, yes, your Honour.

BRENNAN CJ:   How?  Had not your registration expired?

MR MATHEWS:   Yes, your Honour.

BRENNAN CJ:   Was not your reregistration refused?

MR MATHEWS:   Your Honour, if that decision was a nullity, then no decision has been made.  By section 251JC(4) of the Income Tax Assessment Act, the registration is deemed to continue until they make a decision voiding it.  So, therefore, if they have not made a decision, then I was registered the whole time.

BRENNAN CJ:   Very well, that is your argument.

MR MATHEWS:   Yes, your Honour.  It is the way the law is stated there.  In fact, it prevents them from having to make a decision prior to the lapsing of the previous registration.  So, in fact, they could make a decision at any time.  Effectively hold off making decisions until some time they wished and make a decision to effectively cancel registration at any time by saying we are making the decision for your last reregistration application.  Given that, my holding the decision is a nullity.  The major question in this is whether the obiter of Justice Aickin in Forbes Case, which was page 33 of the respondent’s material, on page 277, that an ultra vires decision is a good decision until it is reviewed.  Whether that is good law or not is, I believe, an important occasion whereby this Court can make it known clearly whether that is the law or not.  In that case that is obiter.  It was necessary, not ratio, it was not necessary to find that way for the majority to find as they did in that case.  So, that is not ratio, but it would be ratio in this case if the Court was to find that a nullity is a good decision until it is reviewed by authorities which have jurisdiction to review that decision.

I would refer you to the piece I submitted which was from a text book of Tracey and Sykes regarding collateral attack.  If the obiter of Justice Aickin is good law then there is no such thing as collateral attack.  It is relegated to history.

GAUDRON J:   Do you not have this difficulty:  there is a procedure for attacking such decisions, that being the procedure under the AD(JR) Act, and prima facie, at least, except for the ability of this Court to exercise its constitutional function with respect to prerogative relief, that is a code of the remedies that are available to a person aggrieved by a decision.

MR MATHEWS:   Yes, your Honour, but collateral attack is also a remedy.

GAUDRON J:   It is not if it is a code.

MR MATHEWS:   If it is a code, your Honour, but to my knowledge it is not.

GAUDRON J:   Well, it looks like one, does it not?  It looks a bit like it.

MR MATHEWS:   Your Honour, the AAT has jurisdiction in this matter, too, under section 251QA, but that does not mean it has to be heard in that way.

GAUDRON J:   The question is whether Parliament having given you particular statutory remedies which you may pursue, there is any remedy outside those, and those which may be available pursuant to the Constitution.

MR MATHEWS:   Your Honour, the difficulty there is that if this view that ultra vires decision is ultra vires until challenged in a way that the government says by statute, then the Tax Agents Board, in particular, which has immunity from any civil action for its decisions, so there can be no tortious actions against them, can be as reckless and careless as they wish in making their decisions, and fear nothing.  By their doing that they can put people through hoops.  Make them go to great extra work to do things which is maybe unnecessary and should not occur, and this Court is approving that if they find in this way.  If they approve as ratio the decision of Justice Aickin in the Forbes Case ‑ ‑ ‑

BRENNAN CJ:   Mr Mathews, there is a lot of wording that goes on about nullity, as you know.

MR MATHEWS:   Yes, your Honour.

BRENNAN CJ:   I would like to take you back again to the issues that fell for determination in the criminal prosecution, namely whether you were or were not registered.  Now, as I understand it, your registration had expired.  That is correct, is it not?

MR MATHEWS:   That registration, but reregistration had been applied for, your Honour.

BRENNAN CJ:   Applied for, but not at that time granted.

MR MATHEWS:   Your Honour, by section 251JC(4) until such time as they make a decision then they could not really prosecute, surely.

BRENNAN CJ:   That is not what JC(4) says.  What JC(4) says is that when the Board refuses to reregister and gives a notice:

the applicant shall be taken to have been registered as a tax agent during the period commencing at the expiry time and ending at the notice time.

MR MATHEWS:   Yes, your Honour.

BRENNAN CJ:   In other words, where there has been a refusal you can get a deemed extension of time.

MR MATHEWS:   Well, your Honour, yes, by the same token, but surely they could not prosecute a person and then later make a decision to refuse reregistration.

BRENNAN CJ:   Why not?

MR MATHEWS:   Why should they?

BRENNAN CJ:   All one can say is that the statute provides that there is that deemed extension of time when those events take place.  Obviously it is intended to provide some leeway where registered tax agents can continue until a decision is made.

MR MATHEWS:   This has been something of the order of six months, and by the same token, they can hold off reregistering for as long as they like.  In fact, they considered evidence subsequent to the reregistration for the application for reregistration, and without knowledge to me, without giving me any opportunity to be heard - totally ultra vires.

BRENNAN CJ:   Whatever you might say about them, I am concerned with the proceedings in the criminal prosecution.  What I am looking for is any shred of support for the proposition that at the relevant time, namely at the time of the receipt of the fee, you were registered.

MR MATHEWS:   Yes, your Honour.  The section 251JC(4), I will go back to because logic will hold that there cannot be anything else but deemed registration.  The way the section is structured, regardless of the wording of saying that okay we will deem it up to that time if we make a decision not to reregister, but what about if they do not make a decision.  Would it be that they could make a decision as they did in this case, a purported decision in October, and then prosecute for having completed returns prior to that time, but since 1 April 1992 when, under the previous registration, was lapsed.  It would seem highly improper.  It becomes simply a matter of whether the Court - it really comes back to whether they did make a decision, because if they did not make a decision ‑ ‑ ‑

BRENNAN CJ:    There are two periods.  One is the period of actual registration.

MR MATHEWS:   Ceased 1 April 1992, yes, your Honour.

BRENNAN CJ:   The second is the period of deemed registration under 251JC(4).

MR MATHEWS:   That is if they did make a decision, your Honour.

BRENNAN CJ:   Let us assume that they did make a decision.

MR MATHEWS:   That was not a nullity.

BRENNAN CJ:   That was not a nullity; then there is an extension.  Is that correct?

MR MATHEWS:   Yes, your Honour.

BRENNAN CJ:   Let us assume that they did not make a decision.

MR MATHEWS:   They did not make a decision, yes, your Honour.

BRENNAN CJ:   Then JC(4) does not apply.

MR MATHEWS:   So, if they failed to make a decision - if the administration can say, “We will not make a decision so this fellow can be prosecuted for not being registered”.

BRENNAN CJ:   I am just looking at the elements of the offence at the time that it came before the court below in which you were convicted.

MR MATHEWS:   Yes, your Honour.

BRENNAN CJ:   What basis do you say there was for finding that you were, at the time of the receipt of the fee, registered?

MR MATHEWS:   The fact that no decision has yet been made, your Honour.

BRENNAN CJ:   I see.

MR MATHEWS:   And that a nullity is a nullity, for all time, and ultra vires cannot be made intra vires by effluxion of time.  If that is the case, then if my case fails today, that is effectively what is being held - that they can make decisions with immunity from being personally liable, no matter how reckless or careless they wish to be.  I have to then be put through the expense and time of appealing that decision in an appropriate place, such as the AAT, which would involve a fee of $300, and even at that time I am destitute.  So, you would not want me to continue, is that the case?

BRENNAN CJ:   You can continue as long as you like, so long as you have something relevant to say, Mr Mathews.

MR MATHEWS:   Yes, your Honour.

BRENNAN CJ:   Within the time limits.

MR MATHEWS:   Yes, your Honour.  Do you find that that is not relevant, what I have said regarding 251JC(4)?

BRENNAN CJ:   I do not see at the moment that 251JC(4) assists you.

MR MATHEWS:   I see, your Honour.  I would hold that no other logical possibility can occur from the way section 251 is structured, than that a person is always deemed to have registration until a valid decision is made by the Tax Agents Board, provided an application of reregistration has been validly lodged, which is not in contention here.

If I could refer you to my - that I handed in regarding remedies on collateral attack that was written by Tracey and Sykes.  The last sentence on the last page which I could read:

Indeed, the occasion for a collateral attack often arises when the person who considers the decision to be void simply disregards it and waits until he is sued or prosecuted; and he may do this even when there is a right of appeal from the purported decision.

If that is not good law then so be it.  The effect of 251JC(4) is that - I have a problem sometimes, my mind goes blank, your Honour; a head injury, neurological damage - if that is not the law, then there is no such thing as collateral attack.  If there is no such thing as collateral attack then I would be wasting my time and the Court’s time for which I would humbly apologise, but, I believe that the view of Lord Reid, as I stated in my submission, in Anisminic, that a nullity is a nullity for all time, and cannot be made intra vires by effluction of time or for any other purposes.

BRENNAN CJ:   What you are wanting to say is that there is a nullity here.  Therefore, there was no decision made by the board.

MR MATHEWS:   That is right, your Honour.

BRENNAN CJ:   And because there was no decision made by the board you are still entitled to the protection of 251JC(4).  That is your case, is it not?

MR MATHEWS:   Yes, your Honour.  I would allege that the only logical way that 251JC(4) can hang together is that until the Tax Agents Board makes a decision refusing registration, all applicants are deemed to be reregistered, even though it does not say that in precise terms.  But, that can be the only logical effect on it.  Otherwise everyone could be prosecuted prior to the Tax Agents Board making a decision.  So they have to be protected by the legislation.  Implied in the legislation is protection until the Tax Agents Board makes a decision.

BRENNAN CJ:   But then the question arises if that is the way in which it has to be construed, whether or not “decision” in 251JC(4) refers to a de facto decision or a valid decision.

MR MATHEWS:   Yes, your Honour.

BRENNAN CJ:   If it refers to a de facto decision, because that is the only way in which you could ascertain the limitation of time, then again your case does not really have much support.

MR MATHEWS:   If it was, your Honour, but surely a de facto decision cannot be given weight of law, otherwise a nullity is not a nullity.

BRENNAN CJ:   It does not have to be given weight of law.  It just has to see whether or not it enlivens, engages or activates 251JC(4).

MR MATHEWS:   Yes, your Honour, and I would humbly submit that it would have to be phrased in the terms of being a decision or purported decision, because a person’s livelihood and their whole being is at stake in this case, and it cannot be easily construed against an applicant in this case.  I see this as being my threshold argument, your Honour, and I do have other things to refer to, unless, of course, you find against me on this.

BRENNAN CJ:   Your time has not yet expired.

MR MATHEWS:   The orange light is on, your Honour.

BRENNAN CJ:   Orange light; when the red goes on, your time is up.

MR MATHEWS:   Okay, your Honour.  Given that, the other thing to address is whether section 9 of the AD(JR) ousts jurisdiction.  It really determines whether - it ousts jurisdiction in direct attack, which is referred to in that article by Tracey and Sykes.  But does it oust jurisdiction in relation to collateral attacks.  Of course, this comes back to whether the view of Justice Aickin, which you have been suggesting to me is valid, or putting to me that I should address, if that is valid then there is no such thing as collateral attack.  We can relegate it to history.  If an administrative tribunal makes a decision then the person has to race within the time limit and do all they have to do within that time limit, which would be known to the person making the decision, to then have that ultra vires decision righted, or shown to be ultra vires.  Without that, there is a case. 

We need to know that there is a collateral attack.  Given that there is collateral attack, we then look at the definition in section 9 of the AD(JR) Act which is on page 15 of the respondent’s materials, and the definition of “review” means”

review by way of:
(a)  the grant of an injunction;
(b)  the grant of prerogative or statutory writ.....or the making of any
      order of the same nature.....; or
(c)  the making of a declaratory order.

BRENNAN CJ:   Time is up.  Thank you, Mr Mathews.  We need not trouble you, Mr Hanson.

There was no error in the decision from which the applicant seeks special leave to appeal.  Accordingly, special leave will be refused.

AT 11.05 AM THE MATTER WAS CONCLUDED