Mendonca v Tax Practitioners Board

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FEDERAL COURT OF AUSTRALIA

Mendonca v Tax Practitioners Board [2018] FCA 1686

File number(s): NSD 175 of 2018
Judge(s): FARRELL J
Date of judgment: 7 November 2018
Catchwords: ADMINISTRATIVE LAW – challenge to decisions of the Tax Practitioners Board pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) – applicant seeks certiorari, mandamus and declarations – Board admits jurisdictional error – whether it is appropriate to order mandamus and the declarations sought by the applicant – Board has provided undertaking to reconsider making the decision – decisions quashed
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 6, 16

Judiciary Act 1903 (Cth) s 39B

Tax Agent Services Act 2009 (Cth) Pt 6, Subdiv 40A, ss 2-5, 30-1, 30-5, 30-10, 60-95, 60-100, 60-105, 60-105, 60-110, 60-115, 60-125

Explanatory Memorandum to the Tax Agent Services Bill 2008

Cases cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Date of hearing: 25 October 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 31
Counsel for the Applicant: The Applicant appeared in person
Solicitor for the Respondent: Ms H Dejean of Australian Government Solicitor

ORDERS

NSD 175 of 2018
BETWEEN:

GERARD MENDONCA

Applicant
AND:

TAX PRACTITIONERS BOARD

Respondent

JUDGE:

FARRELL J

DATE OF ORDER:

25 OCTOBER 2018

THE COURT NOTES THAT:

1.The Respondent concedes that the decision dated 25 July 2017 to take no further action in relation to a complaint made by the applicant on 7 May 2017 concerning alleged conduct of Mr Clive Nelson and Ms Lauren McGinty is subject to error as the respondent concluded that it only had jurisdiction to consider conduct which constitutes a “tax agent service”.  The respondent also concedes that its decisions dated 15 January 2018 were subject to error because they sought to uphold or affirm the decision of 25 July 2017.

2.The respondent undertakes to consider again whether or not to investigate the applicant’s complaint.

THE COURT ORDERS THAT:

1.Time in which to seek review of the decision dated 25 July 2017 is extended to 12 February 2018.

2.The decision of the respondent dated 25 July 2017 and two decisions of the respondent dated 15 January 2018 are quashed pursuant to s 16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

3.The respondent must pay the applicant’s costs of the application as agreed or assessed.

4.The application is otherwise dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

FARRELL J

  1. These are reasons for the orders made in relation to an application for judicial review of decisions of the respondent, the Tax Practitioners Board.  The first decision was made on 25 July 2017 and two further decisions were made on 15 January 2018.  The applicant, Mr Mendonca, lodged an originating process on 12 February 2018 (and filed an amended application on 12 July 2018)…

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Details
Case
[2018] FCA 1686
Decision Date

CaseChat Overview and Summary

The case of Mendonca v Tax Practitioners Board involved Mr Mendonca, a former employee of Chan & Naylor Parramatta Pty Ltd, who sought judicial review of decisions made by the Tax Practitioners Board (the Board). Mr Mendonca had previously filed a complaint with the Board against his former employer's director and an employee, alleging misconduct in relation to evidence given during a previous court proceeding. The Board decided not to investigate the complaint, finding it outside its jurisdiction. Mr Mendonca sought certiorari, mandamus, and declarations from the court, challenging the Board's decisions.

The primary legal issue in this case was whether the court should quash the Board's decisions and grant the relief sought by Mr Mendonca. The court needed to determine if the Board had made a jurisdictional error in deciding not to investigate the complaint and whether it was appropriate to order mandamus and the declarations sought by Mr Mendonca. Furthermore, the court had to consider the Board's undertaking to reconsider the decision, which could impact the relief granted.

The court found that the Board had indeed made a jurisdictional error in deciding not to investigate the complaint. Given the Board's concession and undertaking to reconsider the decision, the court decided not to make the declarations sought by Mr Mendonca, as they dealt with a hypothetical situation concerning any potential investigation. Instead, the court chose to quash the Board's decisions, order the Board to pay Mr Mendonca's costs, and dismiss the proceedings. The court noted that, as Mr Mendonca was a litigant in person, he was not entitled to claim costs for his time but could recover incidental costs such as filing fees and photocopying expenses.

In conclusion, the court quashed the Board's decisions, ordered the Board to pay Mr Mendonca's costs, and dismissed the proceedings. The court's decision emphasised the importance of jurisdictional errors and the role of undertakings in administrative law cases. The specific orders included extending the time to seek review of the decision dated 25 July 2017, quashing the decisions dated 25 July 2017 and 15 January 2018, and directing the respondent to pay the applicant's costs. The application was otherwise dismissed.

Orders

Orders of the court

1. Time in which to seek review of the decision dated 25 July 2017 is extended to 12 February 2018.

2. The decision of the respondent dated 25 July 2017 and two decisions of the respondent dated 15 January 2018 are quashed pursuant to s 16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

3. The respondent must pay the applicant’s costs of the application as agreed or assessed.

4. The application is otherwise dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Mr Mendonca appeared as a litigant in person in these proceedings.BACKGROUND From 2006, Mr Mendonca was an employee of Chan & Naylor Parramatta Pty Ltd, which was a company that provided accounting, tax and wealth advice services. Ms Lauren McGinty was an employee and Mr Clive Nelson was a non-executive director of Chan & Naylor. Mr Mendonca filed proceedings in the District Court of New South Wales claiming that Chan & Naylor had failed to pay him performance bonuses for six of the years he was employed there. On 12 June 2014, Judge Balla handed down judgment in the matter. Her Honour found that Mr Mendonca’s evidence was unreliable and that he had created a false document entitled “Bonus Policy” for the purpose of the District Court proceedings. On 7 May 2017, Mr Mendonca lodged complaints with the Board against Mr Nelson and Ms McGinty in relation to the integrity of their evidence in the District Court proceeding. Mr Mendonca says that his purpose was to have Mr Nelson and Ms McGinty found to be not fit and proper persons and to have their registrations terminated under Subdiv 40A of the Tax Agent Services Act 2009 (Cth). Mr Mendonca requested the Board, “as a measure of procedural fairness”, to use its powers under s 60-100 (power to request production of a document or thing), s 60-105 (power to require witnesses to appear before the Board), s 60-110 (power to take evidence on oath or affirmation) and s 60-115 (not excused from self-incrimination) of the Tax Agent Services Act to require the production of certain emails, and to inspect the bonus calculator attached to an email dated 4 February 2008 from Mr Nelson in Mr Nelson’s e-mail box and e-mail boxes of certain other current and former employees, including Mr Mendonca and Ms McGinty. On 25 July 2017, the Board wrote to Mr Mendonca advising that it had decided to take no further action in relation to the complaint because the Board “found that the allegations do not constitute tax agent services and therefore are outside the jurisdiction of the Board”. On 20 August 2017, Mr Mendonca lodged an application for review of the Board’s decision with the Administrative Appeals Tribunal and on 10 November 2017 the AAT found that it did not have jurisdiction to review the decision: see Mendonca and Tax Practitioners Board [2017] AATA 2177. On 24 August 2017, Mr Mendonca sought internal review of the decision made on 25 July 2017. Mr Mendonca summarised the conduct he relied on as follows: 1.That Clive Nelson wilfully gave false and misleading sworn evidence to Judge Balla that the bonus calculator attachment to his e-mail of 4 February 2008 sent by him to client-managers was blank/incomplete without numbers and wilfully concealed the truth that that the bonus calculator attachment to his e-mail of 4 February 2008 sent by him to client-managers was complete with numbers.2.That Clive Nelson wilfully gave false and misleading sworn evidence to Judge Balla that the 1st Bonus Policy and ONLY Bonus Policy was 11 July 2007 and wilfully concealed the truth that the 1st Bonus Policy was 19 November 2006.3.That Clive Nelson wilfully gave false and misleading sworn evidence to Judge Balla that he held a client managers meeting in September 2007 to discuss/agree with all client-managers (Gerard Mendonca, Lauren McGinty, Elizabeth Pizzardi, Man Lai and Neetu Shankar) to adopt Bonus Policy of 11 July 2007 and wilfully concealed the truth the he scheduled by e-mail client managers meeting for 8 February 2008 that did NOT discuss about any bonus policy and Firm EBIT.4.That Lauren McGinty corroborated wilfully false and misleading sworn evidence of Clive Nelson when Lauren McGinty wilfully gave false and misleading sworn evidence to Judge Balla that Clive Nelson held a client managers meeting in September 2007 to discuss/agree with all client-managers (Gerard Mendonca, Lauren McGinty, Elizabeth Pizzardi, Man Lai and Neetu Shankar) to adopt Bonus Policy of 11 July 2007 and wilfully concealed the truth that Clive Nelson scheduled by e-mail to client managers including herself meeting for 8 February 2008 that did NOT discuss about any bonus policy and Firm EBIT.5.That Kota Keniry and Lauren McGinty did not corroborate the wilfully false and misleading sworn evidence of Clive Nelson that the bonus calculator attachment to his e-mail of 4 February 2008 sent by him to client-managers was blank/incomplete without numbers.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It would not be appropriate to make a declaration contemplated by proposed order five. First, there is no dispute in these proceedings that, if the Board decides to conduct an investigation into the matters raised by Mr Mendonca’s complaint, it has the power to request production of a document or thing under s 60-100, the power to require witnesses to appear before the Board s 60-105, the power to take evidence on oath or affirmation under s 60-110 and a person is not excused from responding by reason of self-incrimination under s 60-115. Second, it is asking the Court to deal with a hypothetical situation concerning the nature and extent of any investigation the Board may decide to undertake and the response of persons who are not party to the proceedings. Accordingly, I declined to make any declaration of that kind.CONCLUSION The Court determined that, having regard to the Board’s undertaking and its concession (which was properly made) that its decisions dated 25 July 2017 and 15 January 2018 are affected by jurisdictional error and should be quashed, it was appropriate to extend time in relation to the decision dated 25 July 2017, to quash the decisions, to order that the respondent pay Mr Mendonca’s costs and otherwise to dismiss the proceedings. As Mr Mendonca is a litigant in person and he is not a legal practitioner, it may be useful to note that he is not entitled to claim costs of his time in making the application, but he would be entitled to recover incidental costs such as filing fees and costs of photocopying which he has paid.

Ratio Decidendi

Legal Principle Established

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