Morien v Tax Agentsa** Board (WA)
[2007] FMCA 508
•12 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MORIEN & ANOR v TAX AGENTS’ BOARD (WA) | [2007] FMCA 508 |
| ADMINISTRATIVE LAW – Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) – application of s.10(2)(b)(ii) of ADJR Act – whether decision to cancel registration of Second Applicant as tax agent reviewable in Administrative Appeals Tribunal. |
| Administrative Decisions (Judicial Review) Act 1977, ss.3(1), 10(2) Administrative Appeals Tribunal Act 1975, s.37 Income Tax Assessment Act 1936, ss.251K, 251QA Freedom of Information Act 1982 |
| Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Duncan v Hotop & DFACS [2002] FMCA 56 |
| First Applicant: | NEIL EDOUARD MORIEN |
| Second Applicant: | BEAZLEY NEMASS PTY LTD |
| Respondent: | TAX AGENTS’ BOARD (WA) |
| File number: | PEG 53 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | Determined on written submissions |
| Date of last submission: | 20 November 2006 |
| Delivered at: | Melbourne (and by video link to Perth) |
| Delivered on: | 12 April 2007 |
REPRESENTATION
| First Applicant: | In Person |
| Second Applicant: | Represented by leave by the First Applicant |
| Solicitor for the Respondent: | Mr T. P. Burrows |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
Liberty to apply is granted to the Respondent in relation to the question of costs within seven days of the date of these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 53 of 2006
| NEIL EDOUARD MORIEN |
First Applicant
| BEAZLEY NEMASS PTY LTD |
Second Applicant
And
| TAX AGENTS’ BOARD (WA) |
Respondent
REASONS FOR JUDGMENT
The application before the Court purports to seek review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) of a decision of the Respondent to cancel the registration of the Second Applicant as a tax agent on 8 March 2006.
A preliminary issue to be determined on written submissions is whether the Court should exercise its discretion pursuant to s.10(2)(b)(ii) of the ADJR Act which provides as follows:
“(ii)that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.”
The parties were permitted to file and serve written submissions. It is not necessary to refer in detail to the submissions filed for and on behalf of the Applicants save to note that the Court has been provided with voluminous material, a great deal of which is clearly in my view irrelevant. Where parties file voluminous material which is irrelevant it is not incumbent upon the Court to consider that material in detail.
Hence in the present application having received written submissions it is appropriate that the Court deals with the preliminary issue concerning the exercise of its discretion pursuant to s.10(2)(b)(ii) of the ADJR Act which I regard as a threshold issue. It is clear to me that if the Court should exercise its discretion in a manner proposed by the Respondent, then that will effectively bring to an end the substantive application.
It is submitted on behalf of the Respondent that the Court should exercise its discretion pursuant to s.10(2)(b)(ii) of the ADJR Act and refuse to grant the application effectively made on the part of the Second Applicant as there is adequate provision in the Administrative Appeals Tribunal Act 1975 (the AAT Act) under which the Second Applicant is entitled to seek review by the Administrative Appeals Tribunal (AAT) of the decision which is now sought to be reviewed. The review, it is submitted by the AAT of that decision would be a full merits review and not judicial review sought in the current application.
In the submissions of the Respondent it is noted that the primary decision in issue is a decision of the Respondent of 8 March 2006 to cancel the registration of the Second Applicant as a tax agent under s.251K of the Income Tax Assessment Act 1936 (the ITTA 1936).
It is not in dispute that there is adequate provision for review of the decision under the AAT Act by application of s.251QA of the ITTA 1936. There is also no dispute that the AAT has power to consider a stay of the primary decision.
I accept, as submitted by the Respondent, that the Applicants in submissions before this Court seem to suggest that there may be other decisions made by the Respondent up to and including the decision on 8 March 2006 and it is claimed that the AAT may not have adequate power to review those other decisions.
However, I further accept as submitted by the Respondent that any other alleged decisions do not, on my reading of the material, constitute a decision under an enactment for the purpose of s.3(1) of the ADJR Act. I accept, as submitted by the Respondent, that a decision under an enactment means an ultimate or operative decision and not a mere expression of opinion or statement which can have no affect on a person (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335-338).
In submissions of the First Applicant filed 13 November 2006 reference is made to what may be described as “relevant decisions” at page 6 of those submissions. However, a proper reading of those items clearly reveals that they are no more than findings which lead to the decision sought to now be reviewed. I accept the submission of the Respondent that the significant decision in this instance is the one referred to, namely the decision to cancel the registration of the Second Applicant. That decision clearly is based upon expressions of opinion and statements by the Respondent which cannot be regarded as separate decisions for the purpose of the ADJR Act.
It remains for the Court to consider whether the substantive decision sought to be reviewed, namely the decision of 8 March 2006, having regard to the relevant provisions of the ITTA could properly be the subject of merits review before the AAT.
In my view the application before this Court is misconceived. Many of the complaints refer to process rather than the ultimate or operative decision. As indicated at the outset it is not appropriate for the Court to simply refer in detail to the submissions of the First Applicant where it is clear that upon a proper reading of those submissions there is no merit in the application. In this case the First Applicant has sought to refer in some detail to many authorities, most of which are irrelevant to the threshold issue which I am required to consider.
It is noted, for example, that other items of concern set out in the submissions of the First Applicant filed 13 November 2006 relate, as submitted by the Respondent, to matters which could properly be raised and considered in merits review by the AAT. In any application before the AAT the Respondent would be required to provide copies of all relevant documents pursuant to s.37 of the AAT Act. The Applicants in addition have the opportunity to produce relevant evidence including documents and witnesses to the AAT and at the appropriate time make submissions.
It is further noted that at paragraph 16 on page 7 of the submissions a vague reference is made to a decision of the Respondent claimed to be a failure to comply with the obligations under the Freedom of Information Act 1982 (the FOI Act). I accept as submitted by the Respondent that that is not an ultimate or operative decision within the meaning of s.3(1) of the ADJR Act. In any event, documents have not been produced indicating that at the relevant time, as submitted by the Respondent, the First Applicant made an application under the FOI Act which might have led to any decision. It is not necessary to consider this matter in any further detail.
In my view, the submissions of the Respondent in relation to the alternative process available pursuant to the AAT Act are clearly correct. Adequate provision is made for review of the decision under the AAT Act. In the exercise of the discretion the Court undoubtedly has pursuant to s.10(2)(b)(ii) of the ADJR Act, it is appropriate having made that finding to therefore dismiss the substantive application with costs.
The Court has previously dealt with this issue in the matter Duncan v Hotop & DFACS [2002] FMCA 56 at paragraphs 14, 23 and 24, which state:
“14.I was further referred to the decision of Weinberg J in Percerep v Minister for Immigration (1998) 86 FCR 483. At page 495 the Court referred to the view that had been expressed by Spender J in Servos v Repatriation Commission (1995) 56 FCR 377 at 385 that the jurisdiction of the Federal Court pursuant to s 44 of the AAT Act did not permit the reception of further evidence which was not before the Tribunal and then Weinberg J went on to say,
“The very limited circumstances in which such evidence will be received must, however, include those cases where it is contended that the applicant has been denied procedural fairness before the Tribunal, and evidence is required to make good that claim.”
---
23.In my view it is appropriate to follow the decision of Weinberg J in the Percep case where His Honour applied the decision of Davies J in the Tuite case. It is clear in the present case as I have indicated a final decision has been made which could properly be the subject of an application pursuant to s 44 of the AAT Act. It is also clear that this does provide another enactment by which the appeal can be brought and hence I am satisfied that where there is a right of appeal under s 44 of the AAT Act then that provides an alternative remedy under an enactment for the purposes of s 10(2)(b)(ii) of the ADJR Act.
24.I am strengthened in this conclusion by the observations of Burchett J in Secretary Department of Employment Education Training and Youth Affairs v Allen (1998) 26 AAR 420 where His Honour at 421 said in dismissing an application for judicial review under s 5 of the ADJR Act that as the decision in that case was a preliminary point raised in relation to the application by the tribunal it could not be challenged in a court in the normal way by appeal under s 44 of the AAT Act. His Honour applied what had been said in the decision of Director General of Social Services v Chaney (1980) 47 FLR 80. He then went on to say at p 421 the following,
‘Notwithstanding that it is open to a litigant in the Administrative Appeals Tribunal to bring before the Court an application under the Judicial Review Act or s 39B of the Judiciary Act, the desirability of not permitting a proceeding before the Tribunal to be fragmented by interlocutory appeals, and the availability, at the end of the proceedings, of a right of appeal under s 44, provides strong reasons for refusing, as a matter of discretion, to grant relief by way of judicial review, except where significant benefit may be obtained by an early determination of some particular point.’”
Consistent with the authority of the decisions as set above, as indicated it is appropriate the application in this instance be dismissed.
A further issue raised in submissions by the parties concerns the standing of the First Applicant to bring the application.
It is not suggested that at any time the First Applicant was registered as the tax agent or indeed as a nominee of the Second Applicant. The decision sought to be reviewed clearly relates to the Second Applicant. The status of the First Applicant, as managing director of the Second Applicant, does not mean that the decision is one which then gives standing to the First Applicant to bring this application in his own name.
It is submitted by the Respondent and I accept that in the alternative the application by the First Applicant cannot proceed as the First Applicant does not have standing. Whilst I accept that one should not interpret too narrowly the meaning of “person who is aggrieved” for the purposes of the ADJR Act, I am satisfied that in this instance where the First Applicant is an officer of the Second Applicant it is not appropriate to permit standing to the First Applicant when the application can easily proceed in the name of the Second Applicant. I can see no objective basis upon which the First Applicant can claim to be a person aggrieved save that he happens to be an office holder for the time being of the Second Applicant. If office holders of a corporation were permitted to be the aggrieved persons then it would lead to the extraordinary outcome that all office holders and perhaps even employees of a corporation may seek to demonstrate that they are persons who are aggrieved. That of itself, in my view, is not sufficient to confer locus standi. Whilst members of a company may be regarded as having a grievance beyond an ordinary member of the public, that does not of itself, in my view, provide a basis upon which in this case the Court can automatically grant standing to the First Applicant. It is clear, however, for the reasons already given that it is not strictly necessary for the Court to determine the issue of standing in any event.
A further issue is raised which was the subject of written submissions concerning whether the First Applicant can represent the Second Applicant in these proceedings. The Court does not need to resolve this issue given that it has already decided to dismiss the application in the exercise of its discretion pursuant s.10(2)(b) of the ADJR Act. It is noted that no objection is taken to the First Applicant as managing director representing the Second Applicant.
It should be noted in this case that the Respondent through its solicitors provided appropriate undertakings to take no further action in relation to the decision dated 8 March 2006 until further order. These orders extinguish that undertaking. The conduct of the Respondent throughout these proceedings where a number of adjournments and delays have been caused by the Applicants has been exemplary. It demonstrates yet again that an opportunity has been given to an Applicant to pursue what ultimately was found to be a misconceived application. Having been given that opportunity it does not mean that the Court must then, as indicated earlier, deal with the voluminous submissions and documents sought to be relied upon by the Applicants. Simply because the Respondent is a model litigant has responded to the submissions in writing does not of itself give credibility to the other detailed submissions.
The Respondent’s outline of submissions filed 20 November 2006, referred to earlier in this judgment are clear and concise and, as a matter of law, correct.
I shall hear the parties in relation to costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 12 April 2007
0
5
4