Pacific General Securities Ltd v Chief Commissioner of State Revenue

[2003] NSWADT 183

CITATION:	Pacific General Securities Ltd & Anor v Chief Commissioner of State Revenue [2003] NSWADT 183
DIVISION:	Revenue Division
PARTIES:	APPLICANTS Pacific General Securities Ltd & Finmore Holdings Pty Ltd RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	036011
HEARING DATES:	30/05/03
SUBMISSIONS CLOSED:	05/30/2003
DATE OF DECISION:	08/08/2003
BEFORE:	Verick A - Judicial Member
APPLICATION:	Duties Act - no double duty
MATTER FOR DECISION:	Preliminary
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Duties Act 1997 Taxation Administration Act 1996
CASES CITED:	Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 Schiffer v Pattison [2001] FCA 1094 Thomas Cook Australia Pty Ltd and the Collector of Customs (1994) 34 ALD 301 Jackson v Federal Commissioner of Taxation (1989) 89 ATC 4429 BRK (Bris) Pty Ltd v FC of T 99 ATC 4725; (199) 42 ATR 409 Hungerford and Repatriation Commission (1990) 21 ALD 568 Bausch v Transport Accident Commission (1996) 11 VAR 177
REPRESENTATION:	APPLICANTS A.J. O'Brien, barrister RESPONDENT I.S. Young, barrister
ORDERS:	The application for review is fixed for further directions on 10 September 2003 at 9.30am.

Introduction

1 This is an application to the Administrative Decisions Tribunal (“the Tribunal”) pursuant to s 96 (1) of the Taxation Administration Act 1996 (the “TA Act”) to review the objection decision made by the Chief Commissioner (the “Respondent”) to disallow the Applicants’ objection to the Respondent’s assessment of their tax liability under the Duties Act, 1997 (the “Duties Act”).

2 The principal issue in this matter concerns the aggregation of dutiable transactions under s 25 of the Duties Act to be treated as a single dutiable transaction. The matters also raise the exercise by the Respondent of his discretion under s 25(2) which allows him not to aggregate dutiable transactions where he is satisfied that it would not be just and reasonable to do so in the circumstances.

3 When this matter first came before the Tribunal at a directions hearing, I was concerned with the “slim” nature of the documents furnished to the Tribunal under s 58 of the Administrative Decisions Tribunal Act 1997 (the “ADT Act”). The only documents forwarded to the Tribunal were copies of the Applicants’ Notice of Objection dated 19 December 2002, which included some attachments relating to the relevant transaction, and a copy of the Respondent’s objection decision dated 22 January 2003 addressed to the Applicants’ solicitor. In these circumstances I inquired from Ms Roberts, who appeared for the Respondent, as to the absence of other relevant documents, in particular, the Respondent’s objection decision report, which had been included in the bundle of documents previously provided to the Tribunal. Ms Roberts indicated at that time that she would seek instructions from her client and respond at the hearing. The hearing was fixed for 30 May 2003.

4 When this matter came up for hearing on the 30 May 2003, Mr I.S.Young represented the Respondent and the Applicants continued to be represented by Mr A.J.O’Brien.

5 At the hearing, the parties only made submissions in relation to the viva voce inquiry relating to the absence of the Respondent’s objection decision report in the material submitted to the Tribunal under s 58 of the ADT Act. The Respondent and the Applicants have also lodged written submissions with regard to the s 58 inquiry. On this issue the Respondent relies on an affidavit made by Ms Roberts as to the factual reasons for not producing the objection decision report. The affidavit refers to the document as an “objection submission” but because it also contains the decision, it is more appropriate to describe it as the “objection decision report”.

Relevant Legislative Provisions

6 The TA Act and the ADT Act were amended to allow taxpayers to lodge from 2 July 2001 applications to this Tribunal to review objection decisions made by the Respondent under Part Ten, Division 1 of the TA Act. Prior to these changes in the law, taxpayers had the limited right of review by way of an appeal to the Supreme Court. When introducing the legislation, the New South Wales Treasurer in his Second Reading Speech made the following observations:

“It is anticipated that by conferring concurrent jurisdiction on the Administrative Decisions Tribunal and the Supreme Court taxpayers who are presently deterred from pursuing a review of the Chief Commissioner’s decision past the objection stage because of the complexity, expense and delay associated with Supreme Court proceedings will take advantage of access to the cheap and flexible review mechanisms offered by the Administrative Decisions Tribunal. Conversely, those taxpayers who wish to access the judicial expertise of the Supreme Court because their particular matter involves highly technical and difficult legal issues or because the amount of tax in issue is substantial can do so.” (Emphasis added)
7 Under s 96 of the TA Act, a taxpayer dissatisfied with the Respondent’s determination of the taxpayer’s objection may apply to this Tribunal for a review of the objection decision of the Respondent. The duty of the Respondent to lodge material documents with the Tribunal for purposes of the review of the Respondent’s decision on the objection is found in s 58(1) to (4) of the ADT Act which relevantly provide as follows:
“(1) An administrator whose reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal:
(a) a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49(3)), and

(b) a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal.

(2) If the applicant has not been given a statement of reasons under section 49, the Tribunal may direct that a copy of the statement of reasons lodged with the Tribunal under subsection (1)(a) be given to the applicant within such period or periods as the Tribunal directs.

(3) If the Tribunal or President considers that a party to the proceedings would or might suffer hardship if the period of 28 days provided by subsection (1) is not shortened or extended, the Tribunal or President may, at the request of the party, make an order directing that the copies referred to in that subsection be lodged with the Tribunal within such shorter or extended period as is specified in the order.

(4) If the Tribunal or president considers that other particular documents (or that other documents included in a particular class of documents) may be relevant to the determination of the application, it may cause a notice in writing to be served on the administrator:

(a) stating that the Tribunal or President is of the opinion, and

(b) directing the administrator concerned to lodge with the Tribunal, before a date specified in the notice, a copy of each of those other documents that is in the possession, or under the control, of the administrator.”

8 The Respondent’s obligation to provide a statement of reasons under s 58(1) (a) is, pursuant to s 96(5) of the TA Act, modified as follows:
“ (5) For purposes of section 58(1) (a) of the Administrative Decisions Tribunal Act 1997:

(a) the obligation of the Chief Commissioner under that paragraph to a statement of reasons only in respect of the matters arising from the grounds specified in the application, and

(b) if one of the grounds specified in the application relates to a matter raised in an objection determined by the Chief Commissioner – the Chief Commissioner may rely on reasons previously given to the taxpayer by the Chief Commissioner under section 93 for the determination of the objection in explanation of that part of the assessment or decision to which the objection related.”

9 If an administrator wishes to only partially comply with s 58(1) of the ADT Act the administrator has to apply to the Tribunal under s 59 for an order that the administrator not be required to lodge a copy of a document under s 58. Section 59 provides as follows:
“ (1) An administrator may apply to the Tribunal before the expiry of the period referred to in section 58 (1) for an order that the administrator not be required to lodge a copy of a document under section 58.

(2) On any such application, the Tribunal may make an order that a copy of a document not be lodged with the Tribunal if:

(a) it is satisfied that section 125 operates so as not to require the disclosure of the document, or

(b) it considers that, if an application were made under section 75 (2), it would be appropriate to make an order under that subsection prohibiting or restricting the publication or disclosure of evidence of the document.”

10 Section 125 of the ADT Act deals with “privileged documents” and provides that nothing in the ADT Act requires the disclosure of a document if the Tribunal or President is satisfied that evidence of the document could not be adduced in proceedings before a NSW court by reason of the operation of any of the following provisions of the Evidence Act 1995 :
“(a) section 9 (Application of common law and equity), but only to the extent that it preserves any privilege against the adducing of evidence,

(b) section 10 (Parliamentary privilege preserved),

(c) Part 3.10 (Privileges) of Chapter 3.”

11 Section 75 of the ADT Act requires that a hearing before the Tribunal be open to the public. But s 75 allows the Tribunal if it is satisfied that it is desirable by reason of the confidential nature of any evidence or matter or any other reason to order that the hearing be conducted wholly or partly in private and prohibit or restrict the disclosure of any particulars or material that may identify a party or witness to a proceedings before the Tribunal.

12 In the present matter, neither s 125 nor s 75 is relevant. Additionally, the Respondent has made no application to the Tribunal under s 59 of the ADT Act.

13 It is also important in the scheme of the legislation, to note that what is reviewable by the Tribunal is, under s 96(1) of the TA Act, any “decision of the Chief Commissioner that has been the subject of an objection” under s 86 of the TA Act.

14 The Tribunal’s powers on review, in relation to revenue applications for review, are found in both in the TA Act (s 101) and ADT Act (s 63).

The Chief Commissioner’s case

15 The Respondent takes the view that under s 58(1)(b) the “discharge of the obligation to lodge documents with the Tribunal depends upon the opinion of the Respondent concerning the relevance of the documents to the Tribunal’s review”. The Respondent concedes that this “does not, of course, mean that the Respondent as the decision maker is free to form an opinion without acting conscientiously or in accordance with the law: see Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at page 360 per Dixon J.” In taking this view, the Respondent relies on the nature of the obligation on a decision maker under section 37(1)(b) of the Administrative Appeals Act that is in somewhat similar language. The respondent, in his written submission, cites the following paragraph of Kenny J’s judgment in the Federal Court in dealing with the scope of s 37(1)(b) in Schiffer v Pattison [2001] FCA 1094:

Under this provision, the documents that must be lodged are those that the decision-maker considers relevant when he or she comes to lodge them. There are two matters to note: first, the obligation imposed by s37 (1)(b) is not an on-going one for the course of the Tribunal proceeding and, secondly , the discharge of the obligation depends on the opinion of the decision-maker concerning the relevance of documents to the Tribunal’s review. This does not mean that the decision-maker is free to form an opinion in any way he pleases. He or she must act conscientiously and in accordance with law: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 275-276. … [The decision-maker’s] legal representative took the view (which I accept) that two letters relating to the share sales issue were relevant to the Tribunal’s decision, but this does not mean that that the respondent breached his obligation under s37 (1) of the AAT Act. I therefore reject the submission made by counsel for Mr Schiffer. The Tribunal had, moreover, made by counsel for Mr Schiffer. The Tribunal had, moreover, made no direction in terms of s37 (2) of the AAT Act. (Emphasis added)
16 The Respondent also submits that there “is no evidence that the Respondent has not acted conscientiously and in accordance with the law” and that “the affidavit of Ms Roberts makes clear, the objection submission is neither relevant nor material”.

17 The Respondent further submits that the power in s 58(4) of the ADT Act requiring the administrator to produce documents “is similarly circumscribed in that the Tribunal is itself required to form the opinion that the document ‘may be relevant in the Application’ “ and that in “forming the opinion, that the objection submission may be relevant, the Tribunal itself must be acting conscientiously and according to law”. But because the Tribunal has not issued a notice in writing under s 58(4), the provision is not relevant in the present proceedings.

18 Finally, the Respondent relies on the view that the documents required to be lodged are those which relate to the reasons provided by the administrator and must not only be relevant but factual and material. To support this submission the Respondent cites the following observations made by Senior Member Handley in the AAT in re Thomas Cook Australia Pty Ltd and the Collector of Customs (1994) 34 ALD 301 at page 305.5:

To the extent therefore that the statement to be provided by the decision make pursuant to subsection (1)(a) requires a setting out of the findings on material questions of fact, whilst also referring to the evidence or any other material upon which those findings were based, it necessarily follows that the documents that that same person is required to provide under subsection (1)(b) must necessarily be the documents upon which the statement was based and which are necessarily factual and material in nature. They must also necessarily be ‘relevant to the review of the decision by the Tribunal’. (Emphasis added)
19 The Respondent further expands the above submission by relying on the following cases: re Thomas Cook Australia (supra) where the AAT took the view that a legal opinion which was taken into account was “not a document which records any fact relevant to the decision maker in making his decision”; Jackson v Federal Commissioner of Taxation (1989) 89 ATC 429 where Gummow J in the Federal Court held that the taxpayer was not entitled to enquire into the reasoning process undertaken by the Commissioner on assessment and BRK (Bris) Pty Ltd v Federal Commissioner of Taxation (1999) 99 ATC 4725 where, in the Federal Court, Cooper J refused discovery of audit reports and audit files held by the Commissioner.

20 In relation to the discretionary power of the Chief Commissioner found in section 25(2) of the Duties Act 1997, the Respondent makes the following submissions:

28. As is apparent from the observations of their Honours Justices Cooper and Gummow different considerations apply in respect of the exercise of a discretionary power by the Commissioner or where the existence of particular facts is a pre-condition for the application of a provision of the taxing statute.

29. In this case the Respondent has a discretion under section 25(2) of the Duties Act that dutiable transactions are not to be aggregated if the Respondent is satisfied that it would not be just and reasonable to do so in the circumstances. The power contained in subsection (2) involves the exercise of a discretionary power as explained by Gummow J in Jackson at page 4437.

30. However, the document that records the Respondent’s decision under section 25(2) not to exercise the discretion, and sets out the reasons for so doing, as well as stating the findings on the material questions of fact and referring to the evidence or other material is in the Respondent’s letter of 22 January 2003.

31. That document which is relevant and explains the basis upon which the discretionary power vested in the Respondent was exercised has already been lodged with the Tribunal.

Applicant’s submissions in reply

21 I produce the following paragraphs of the written submissions filed by the Applicants in reply to those made by the Respondent:

5. The authorities cited by the Respondent deal with situations where the taxpayer has appealed an objection decision of the Commissioner to a court and was seeking access to those documents. The situation is quite different where the forum of appeal chosen by a taxpayer is an administrative tribunal.

6. The function of the Tribunal is to “stand in the shoes of the original decision-maker”; Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 689 and section 63(2) of the ADT Act. As recognised by Senior Member Handley in re Thomas Cook Australia Pty Ltd and Collector of Customs [1994] 34 ALD 301 at 305.5:

“… it is the tribunal who will decide (if ultimately there is an appeal) whether a document (whether it is before the tribunal or not) is relevant and then whether the relevance extends to the review of the decision of the tribunal.”
7. There is no category of documents prepared by the Respondent, including documents described as “objection submissions”, which of their nature qualify those documents as falling within a class of documents that could never be required to be produced by the Tribunal on the basis of relevance. Each document must be considered by the Tribunal on its “merits”. Accordingly if the Tribunal in the bona fide exercise of its power forms the view in respect of a particular document that it “ may be relevant” and requires its production there can be no error of law. This must follow even if a court subsequently makes a finding that the particular document was not relevant. The issue is not whether the document was relevant or not, but whether the power exercised by the Tribunal to require the production of the document was exercised bona fide by the Tribunal.

8. For example, in the Re Thomas Cook case the Senior Member decided that a certain document was not relevant and did not require its production. However, if the Senior Member had bona fide formed the view that the document was relevant and required its production this would not have amounted to an error of law by the tribunal in the exercise of its power.

22 The Applicants’ submissions also deal with the exercise of the discretion under section 25(2) of the Duties Act. In particular, the Applicants submit as follows:
12. The discretion conferred on the Commissioner under section 25(2) is in the broadest of terms ie., the Commissioner can remit the duty if it is “just and reasonable to do so in the circumstances”. Part of the function of the Tribunal, and the proper exercise of administrative powers generally, is to ensure the making of consistent decisions in the exercise of the same discretionary power; see Re Drake and Minister for Immigration and Ethnic Affairs (N0 2) (1979) 2 ALD 634. In exercising such a broad discretionary power the Tribunal is entitled to, and should seek access, to documents of the Respondent containing information as to the policy being adopted by the Respondent in the exercise of the discretion any bureaucratic advice relating thereto.

13 The “objection submission” clearly contains information that may be of assistance to the Tribunal in the re-exercising of the discretion. For that reason it is a document that is relevant and the Tribunal would be entitled to require the Respondent to produce it pursuant to section 58(4).

23 The Applicants also have responded to the fairly strict legal requirement that is suggested by the Respondent as to the operation of s 58(4). The Applicants take the view that it would not strictly require the Tribunal to give a written notice for the production of any document under s 58(4) because as required by s 73(3) of the ADT Act, the “Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”

24 The Applicants conclude their submissions by saying that if “the Respondent persists with this technical argument it is always open to the Tribunal to adjourn proceedings and to issue the written notice in conformity with section 58(4).”

Reasons and decision

25 I should, up front, mention that there is no application of any kind before this Tribunal to consider the issues raised by the Respondent in order to make any final ruling. The Respondent has not made any application under s 59 of the ADT Act, nor have the Applicants made any application for the Respondent to produce any further documents under s 58. The whole matter arose as a result of an oral inquiry and, accordingly, I can only express my views.

26 The scope of the requirements placed on administrators under s 58 of the ADT Act has not been previously considered either by the Tribunal or any court. Perhaps that is the case largely because administrators in most other jurisdictions of this Tribunal produce their whole file to assist the Tribunal to fully understand the issues when considering applications. The Revenue Division is fairly new and no consistent approach has been taken by the Respondent as to the kind of documents that ought to be furnished under s 58. In some cases the Respondent has produced the relevant objection decision report and in some cases he has not even produced the returns or assessments in issue. I should also add that the Tribunal has issued no practice direction and the Respondent has not issued any public ruling as to the type of documents that he will produce for the requirements of s 58.

27 The Respondent has sought to rely on cases that have considered the scope of s 37 of the AAT Act, a provision fairly similar to s 58 of the ADT Act. I will first examine the relevance of these cases in the context of s 58. The question in issue in Schiffer v Pattison was whether the administrator had breached the obligation placed on him by s 37. It was a bankruptcy matter where the respondent, the trustee in bankruptcy, objected to the discharge sought by the applicant. Her Honour, Kenny J, held that the “discharge of the obligation depends on the opinion of the decision-maker concerning the relevance of the documents to the Tribunal’s review”, and because the decision-maker had, in this case, acted “conscientiously, and in accordance with law” no such breach had occurred. No such allegation is before the Tribunal and the relevance of that case, accordingly, is confined to its own facts.

28 Unfortunately, the Respondent in his written submissions, in relying on paragraph 55 of the judgment in Schiffer v Pattison, has chosen to omit an important part of paragraph 55 of the judgment. The part omitted reads as follows:

Further, this does not mean that a decision-maker need not disclose to the Tribunal information that he or she subsequently considers relevant to the Tribunal’s review: see, eg, [79] below. It may be recalled that the decision under review was made on 7 July 1998, and that Mr Schiffer lodged his review application on 28 August 1998. The court file, which includes documents forwarded by the Tribunal pursuant to s 46(1)(a) of the AAT Act, does not disclose precisely when the respondent first lodged the T documents with the Tribunal. The AMP wrote to the respondent on 19 August 1998 about the sale of shares allegedly belonging to Mr Schiffer. The respondent wrote to Mr Schiffer about the matter on 20 August 1998 and, when Mr Schiffer did not respond again on 27 April 1999. The respondent did not have any documents in his possession relating to the share sales at the time he filed his first notice of objection and, he may properly have considered that they were neither relevant to his decision nor to the Tribunal’s review of it.
29 The above observations made by her Honour Kenny J explain why it was accepted that the respondent had acted properly at the stage when the documents were first lodged with the Tribunal. Her Honour makes it clear that when a document becomes relevant the administrator is duty bound to produce the document. It is also important to observe that Kenny J did accept that the two documents not produced by the decision-maker were relevant but that the Tribunal had made no direction for their production. It can, therefore, be concluded that the Tribunal was, in those circumstances, entitled to direct the decision-maker to produce them.

30 In Thomas Cook the document in question was a legal opinion of counsel. Senior Member Handley held that the document was not relevant because, in his opinion, the document was “not a document which records any fact relevant to the decision making of his decision”. That case can, therefore, be distinguished from the present matter. Here, the objection decision report, if properly made, would contain the relevant facts on which the Respondent has relied on in making his decision. It is a document in that sense relevant for purposes of s 58 of the ADT Act.

31 The Respondent also relies on two other cases. In the first case, Jackson v Federal Commissioner of Taxation (1989) 89 ATC 4429, Gummow J in the Federal Court considered three issues in respect if the application of Part IVA of the Income Tax Act 1936, Only the first two are relevant for the current matter. The first issue which concerned the production of documents at the hearing of the matter in court relating to the decision by the Commissioner to make an assessment based on a determination that the taxpayer had obtained a tax benefit in connection with a scheme. Gummow J held that, because the onus in court is on the taxpayer to demonstrate that the assessments are excessive and establish that the taxpayer had not obtained a tax benefit in relation to a scheme, it was not necessary or relevant to inquire into the matters taken into account by the Commissioner or into his reasoning processes which led to the Commissioner to form his view that Part IVA applied. The second relevant issue concerned the discovery at the hearing of various documents which included submissions and internal memoranda prepared by officers that were taken into account by the Commissioner in making his determination. Gummow J took the view that this issue “stands in a different light” and made the following observations:

It refers to ”a determination pursuant to sec. 177F”. which I read as identifying determinations under subsec. (1) and (2). Upon the hypothesis here, the taxpayer seeks to establish that the assessments were excessive because these determinations, made by the respondent in exercise of discretionary powers, were a crucial element in the process of assessment but lacked “the authority of the Act” in the sense discussed in the authorities I have mentioned. This presents an issue upon which discovery by the respondent may be appropriate: cf. Wellcome Foundation v. V.R. Laboratories (Aust.) Pty. Ltd (1980) 42 F.L.R. 266 at pp. 266-268; affd. (1980 – 1981) 148 C.L.R. 262.
32 The authorities that his Honour had mentioned in the judgment included Fletcher & Ors v. F.C. of T. 88 ATC; (1988) 84 A.L.R. 295, Bailey & Ors v. F.C. of T. 77 ATC 4096; (1977) 136 C.L.R. 214, Avon Downs Pty Ltd v F.C. of T (11949) C.L.R. 353, Denver Chemical Manufacturing Co. v. C. of T (N.S.W.) (1949) 79 C.L.R. 296 and Kolotex Hosiery (Australia) Pty. Ltd. v. F.C. of T . 75 ATC 4028; (1974-1975) 132 C.L.R. 5535. These cases cumulatively support the view that where a discretion is given to the Commissioner, the exercise of the discretion is a crucial element in the process of making an assessment and that the assessment will be excessive if some step in that process which affects the amount of tax lacks “the authority of the Act” and that “the Commissioner must expose to the taxpayer, particularly if so requested, both his state of mind at the relevant time and its basis”.

33 In BRK (Bris) Pty Ltd v FC of T 99 ATC 4725; (199) 42 ATR 409, the other case relied on by the Respondent, the taxpayer sought discovery of various documents which also included an audit report relied on by the Commissioner in making the assessment which also included a penalty tax. Because the taxpayer’s objection was only against the assessment, discovery was refused by Cooper J relying on the Jackson case, on the following basis:

The issues raised by the applicant in respect of the assessment of primary tax involves questions of fact and law which arise out of the circumstances and dealings of the applicant. What the respondent thought the relevant facts were as a consequence of the contents of the audit report and the supplementary papers, and, the documents in the audit file, is irrelevant to a determination of those issues. Whether or not the income appointed to WCC is included in the assessable income of the applicant does not require that the respondent make any determination on that issue before such an outcome can occur. Thus the view of the respondent as to the relevant facts and the operation of ss 95A, 97, 99A(4), 100A and 101 of the ITAA is not a necessary step in the process of assessment which affects the amount of tax.
34 Both Jackson and BRK make it clear that, in cases where it is necessary to establish facts to the satisfaction of the Commissioner or in cases where a discretionary power is vested in the Commissioner, “the inquiry is not as to the intrinsic correctness of the Commissioner’s decision but an inquiry as to whether the Commissioner has exercised the functions according to law: Jackson v FC of T 89 ATC 4429 at 4436; (1989) 20 ATR 611 at 620”. In such cases all the documents, which record the establishment of the facts or exercise of the discretion, are relevant documents for any review of any such action by the Commissioner.

35 Before expressing my views in relation to this matter, I should refer to some general observations made in respect of the scope of similar provision found in the AAT Act and in state legislation. In Re Hungerford and Repatriation Commission (1990) 21 ALD 568, a Full Tribunal made the following statement in reference to s. 37 of AAT Act at pp 577-578:

The Tribunal must be given assistance by respondents. The Tribunal has no personal knowledge of relevant facts and is not in a position to make its own searches. The Tribunal proceeds by way of a hearing at which parties are represented. Justice will not be done to applicants unless respondents who are aware of the facts, or who readily can ascertain the facts, bring to the notice of the Tribunal all matters, which the Tribunal ought to take into account. The review procedure will not function fairly unless respondents freely disclose to the Tribunal all the information which they have concerning the documents to which the applicant seeks access. If there facts known to the respondent which are not known to either the applicant or the Tribunal, how is the Tribunal to be made aware of those facts unless they are disclosed to it by the respondent? … This provision is not aimed solely at permitting a decision-maker to defend his or her decision. Part of its aim is to ensure that the Tribunal is fully informed.
36 The Victorian courts when considering a similar provision in the Victorian legislation gave a stronger message. In the first instance, Eames J in Bausch v Transport Accident Commission (1996) 11 VAR 177 held that the decision-maker did not have any discretion to “pick and choose” between relevant documents and the object of the provision was “to ensure, so far as is possible, that the Tribunal is placed in a position to determine the correctness of the decision of the decision-maker, having regard to all the relevant material”. On appeal to the Court of Appeal, the decision was affirmed [(1998) 13 VAR 61) where Tadgell JA observed that “that the person seeking the review … should ordinarily be entitled to the same information in order to enable the decision to be investigated and appraised”. Batt JA who concurred with Tadgell JA, held that the words of the provision required a decision-maker to lodge documents that the decision maker considered, acting reasonably, to be relevant to the review of the decision and that if it were otherwise a decision-maker could, by taking an unreasonably narrow, albeit honest, view of relevance, deprive the Tribunal of an important document.

37 It is my view that the comments contained in the above two paragraphs apply with equal force to the obligation placed on administrators under s 58 of the ADT Act.

38 I agree with the submission made by the Applicants that the cases relied on by the Respondent were generally cases where applicants were seeking documents in court and that the situation is quite different where a matter is before this Tribunal. The role of this Tribunal is to review the objection decision made by the Respondent and, in that role, the Tribunal is under s 58(2) allowed to “exercise all the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision”. I have, in the preceding paragraphs, indicated that the cases relied on by the Respondent were either not relevant or can be distinguished. It is difficult to say that a document that records the process used by the decision-maker in making his or her decision is not a relevant document when the matter is before the Tribunal, which has the task of reviewing a decision made by the decision-maker. In Jackson and BRK the court was concerned with income tax assessments made by the Commissioner and was not conducting a review of any objection decision made by the Commissioner. Moreover, the matters were in court and the strict rules of evidence applied to the production of any documents. Under s 73(2) of the ADT Act the “Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice”. That clearly underlines the policy of the ADT Act generally and, in particular, would be the policy of individual provisions as under s 73(3) the “Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities of legal forms”. The Respondent’s submissions on the other hand suggest that the Tribunal should construe the provisions and conduct the procedure of review in a very strict legal basis.

39 In any case, s 25(2) of the Duties Act was considered in this matter by the Respondent which involves the exercise by the Respondent of his discretion not to aggregate the dutiable transactions if the Respondent is satisfied that it would not be just and reasonable to do so. Different considerations apply to the documents in the possession of the Respondent. The Respondent accepts that different considerations apply but submits that the obligation to produce all relevant documents is satisfied by inclusion in the bundle forwarded to the Tribunal, his objection decision letter to the applicants because that document “which is relevant and explains the basis on which the discretionary power … was exercised”. Clearly, the objection decision report would contain the “first hand” considerations and matters taken into account by the Respondent and in those circumstances the document is relevant. As was observed by Barwick CJ in Kolotex Hosiery (Australia) Pty Ltd in such cases “the Commissioner must expose to the taxpayer, particularly if so requested, both his state of mind at the relevant time and its basis”. (Emphasis added) A narrative done at some other time by the Respondent does not satisfy the obligation. The Respondent must produce all documents that would show his state of mind and the basis when the decision was made not to exercise the discretion under s 25(2) and this must surely include all the matters that the decision-maker took into account.

40 I now deal with the factual basis that the Respondent relies in not producing the relevant document. The only evidence before the Tribunal in respect of this issue is a Statement of Evidence filed by Ms Helen Roberts, solicitor for the Respondent. In paragraphs 6 to 9 of that Statement the factual basis is stated as follows:

6.I am informed by my instructing client officer, Mr David Martin of the Office of State Revenue, that objection submissions are prepared by officers for submission to and consideration by the decision-maker on objection. As an internal working document of the Commissioner the submission is prepared with the need for utmost candour by officers and often contains robust observations concerning, for example, deficiencies in the legislation, anomalies in the policy, practice and administration by the Respondent of the Duties Act 1977, the conduct of the particular taxpayer, suggested additional investigations and inquiries and the raising of further assessments to other taxpayers.

7. I have read the objection submission relating to the decision here under review and it contains:

(a) Seven sections entitled – Issue, Disputed section/act, Grounds, Background, Comment, Observations, and Recommendation;

(b) A recitation of the facts as the Respondent perceives them to be;

(c) Confidential information of the Respondent relating to procedures on objection;

(d) Confidential information as to the compliance activities of the Respondent; and

(e) Speculation, submissions and inferences drawn from the facts as the Commissioner’s offers perceive them to be and the potential breach of other provisions of the Duties Act1997.

8. I am informed by Mr Martin that the objection submission was not considered by the Commissioner to be relevant to the determination of any issue in the application by the Tribunal and was not included in the documents that the Commissioner lodged with the Tribunal in compliance with the Commissioner’s obligations pursuant to section 58(1)(b) of the Administrative Decisions Tribunal Act 1997.

9. I am informed by Mr Martin that following the oral request by the Tribunal that the objection submission be lodged with the Tribunal he has further considered the decision not to lodge the objection decision. I am further informed by Mr Martin that he has formed the opinion that the objection submission is not relevant to the determination of any issue in the application by the Tribunal and he has confirmed the Commissioner’s earlier decision.

41 The Statement is unfortunately not very helpful. Paragraphs 6 and 7 set out some fairly general observations. In paragraphs 8 and 9, Mr Martin, merely says that the document is not relevant without giving any reasons. Moreover, it is not known whether Mr Martin was authorised or acted as a delegate of the Respondent when he reconsidered this matter. The Respondent has not lodged any other statement nor has any delegate of the Respondent indicated the Respondent’s position. Paragraph 6 contains the kind of grounds that are usually advanced by government agencies in FOI requests. I am not sure if the production of the report will make the Respondent’s officers timid in their work but if that is what the Respondent is concerned with, the officers should be trained to deal with matters in a transparent way that is expected these days of government officials making decisions concerning the rights of citizens. It is also important to note that the Respondent needs to apply to the Tribunal under s 59 of the ADT Act if he has any objection to the production of any document under s 58(1). The narrowness of the operation of s 59 with such objections would suggest that any claim based under the FOI type of defences to deny production of documents would not assist a decision-maker to succeed in any application under s 59.

42 Paragraph 7 deals generally with what is contained in the relevant report. Clearly paragraphs (a) and (b) are relevant for perusal in this matter. It is difficult to understand why procedures on objection and compliance activities of the Respondent should be confidential. The matters dealt with in Paragraph (e) would reflect whether the decision-maker had the proper understanding of the facts of the case and is therefore relevant in any review of the objection decision before the Tribunal.

43 I should also add, for the sake of completeness that generally in the case of stamp duty matters under the Duties Act the Respondent issues no assessment. The documents currently before the Tribunal do not disclose the nature of the assessment. The letter of 22 January 2003 contains the reasons for taking certain views but does not contain any information as to the particulars of the assessment that has been issued. There is some reference in the Applicants’ notice of objection to an assessment but the Respondent has not included any such document. All this information should be found in the Respondent’s objection decision report. These observations add weight to my other observations as to why the document is relevant for a proper review of this matter.

44 Accordingly, I am compelled to conclude that in this matter the objection decision report is a relevant document for purposes of s 58. I will fix this matter for further directions on 10 September 2003 at 9.30am.