Parker v Parker

Case [2009] FCA 932

FEDERAL COURT OF AUSTRALIA

Parker v Parker [2009] FCA 932

ADMINISTRATIVE LAW – judicial review – application brought pursuant to Administrative Decisions (Judicial Review)Act 1977 (ADJR Act) to review conduct of respondent – objection to competency of application – whether conduct for the purpose of making a decision to which the ADJR Act applies – meaning of ‘decision’ under ADJR Act – whether substantive determination – whether applicant has standing to bring application

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 3(d), 5, 6, 8
Income Tax Assessment Act 1936 (Cth) s 264
Taxation Administration Act 1953 (Cth) s 353-10

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317
Edelsten v Health Insurance Commission (1990) 27 FCR 56
Electricity Supply Assn of Australia Ltd v Australian Competition & Consumer Commission (2001) 113 FCR 230
Evans v Friemann (1981) 35 ALR 428
Griffith University v Tang (2005) 221 CLR 99
Guss v Federal Commissioner of Taxation (2006) 152 FCR 88
Hutchins v Commissioner of Taxationn (1996) 65 FCR 269
Khatri v Price (1999) 95 FCR 287
Mirvac Homes (NSW) Pty Limited v Airservices Australia (No 1) [2004] FCA 109
R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190
Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629
Salerno v National Crime Authority (1997) 75 FCR 133
Social Services, Director-General of v Chaney (1980) 31 ALR 571

ANDREW STEPHEN PARKER v MICHAEL PARKER

WAD 81 of 2008

MCKERRACHER J
25 AUGUST 2009
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 81 of 2008
BETWEEN:

ANDREW STEPHEN PARKER
Applicant
AND:

MICHAEL PARKER
Respondent

JUDGE:

MCKERRACHER J

DATE OF ORDER:

25 AUGUST 2009

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The respondent’s objection to competency be upheld. 

2.The claim be dismissed. 

3.The applicant is to pay the costs of the respondent to be taxed if not agreed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


The text of entered orders can be located using eSearch on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 81 of 2008
BETWEEN:

ANDREW STEPHEN PARKER
Applicant
AND:

MICHAEL PARKER
Respondent

JUDGE:

MCKERRACHER J

DATE:

25 AUGUST 2009

PLACE:

PERTH

REASONS FOR JUDGMENT

INTRODUCTION

  1. The applicant seeks review of the respondent’s conduct under s 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The conduct in question is that of the respondent, an employee of the Australian Taxation Office (ATO).

  2. The applicant has issued four other sets of proceedings against individual officers of the ATO.  The events with which each proceeding is concerned are related.  The reasoning on determination of each proceeding is also similar. 

  3. The respondent objects to the competency of the application on the basis that the action the subject of the application was not conduct for the purpose of making a…

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AGLC
Parker v Parker [2009] FCA 932
Case
[2009] FCA 932
Decision Date

CaseChat Overview and Summary

In Parker v Parker, the applicant, who is the director, public officer, and shareholder of Ivyside Pty Ltd (Ivyside), sought review of the conduct of the respondent during an audit of Ivyside's GST input tax credits. The applicant alleged that the conduct of the audit was oppressive and in breach of various statutes and policies. The respondent denied any wrongdoing and argued that the audit was a routine process and that the applicant had not requested an informal review. The court was required to decide whether the conduct of the audit, or the refusal to conduct an informal review, constituted a decision that was subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

The court held that the conduct of the audit did not constitute a decision of a reviewable nature within the meaning of the ADJR Act. The court found that the audit was a procedural step in the process of making a decision and was not a final or operative determination. The court also held that the refusal to conduct an informal review was not a decision that was subject to review because it was not a decision that affected the applicant's legal rights and obligations. The court noted that the applicant had not requested an informal review and that the refusal to conduct such a review did not constitute a substantive determination.

The court dismissed the applicant's claim and upheld the respondent's objection to the competency of the claim. The court ordered the applicant to pay the respondent's costs of the proceeding. The court found that the conduct of the audit, and the refusal to conduct an informal review, did not constitute a decision of a reviewable nature within the meaning of the ADJR Act and the authorities. The court held that the applicant's complaint did not amount to a substantive determination and that there was no decision having the character or quality of finality. The court concluded that the applicant's legal rights and obligations were not affected in any way or in any direct sense by the alleged actions or conduct of the respondent.

Orders

Orders of the court

1. The respondent’s objection to competency be upheld.

2. The claim be dismissed.

3. The applicant is to pay the costs of the respondent to be taxed if not agreed.

Note:

Background

Background to the litigation

The grounds upon which the applicant seeks review are numerous and reflect those appearing under s 6 of the ADJR Act. They are as follows: (a)that a breach of the rules of natural justice has occurred, is occurring, or is likely to occur, in connection with the conduct;(b)that procedures that are required by law to be observed in respect of the conduct have not been, are not being, or are likely not to be, observed;(c)that an error of law has been, is being, or is likely to be, committed in the course of the conduct;(d)that the enactment in pursuance of which the decision is proposed to be made does not authorize the making of the proposed decision;(e)that the making of the proposed decision would be an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made;(f)that there is no evidence or other material to justify the making of the proposed decision; (g)that the making of the proposed decision would be otherwise contrary to law. BACKGROUND The applicant is the director, public officer and shareholder of the company Ivyside Pty Ltd (Ivyside). Ivyside claimed GST input tax credits with respect to various purchases in relation to the company. On 22 May 2007, the respondent advised the applicant that the claims at ‘label G11’ on his activity statement for the period July to September 2006 would be disallowed because valid tax invoices were not produced to substantiate the amount of GST credits claimed. The ATO subsequently issued the applicant notices pursuant to s 264 of the Income Tax Assessment Act 1936 (Cth) (ITAA 1936) and s 353-10 of the Taxation Administration Act 1953 (Cth) (TAA). On or around 3 October 2007, the ATO issued the applicant an amended assessment and penalties for the July to September quarter of 2006. COMPLAINT The conduct of which the applicant complains is that the respondent has conducted himself during the audit of the applicant’s interests oppressively towards the applicant, in breach of the Taxpayer’s Charter, in abuse of his power, in breach of the Privacy Amendment (Private Sector) Act 2000, in breach of the ATO Receivables Policy and purposefully causing the applicant mental and emotional pain and suffering. In an affidavit in support of the application complaint is raised of a refusal to afford the applicant an informal review. He stresses that this is now his real complaint. The respondent complains that there was no evidence put forward which could remotely support any allegation of oppressive, harassing or unlawful behaviour by the respondent. The respondent submits that merely by conducting an audit, the ATO (and certainly the respondent) did not make a decision of an administrative character under an enactment. The respondent also points to the fact that the affidavit in support of the application now complains that the decision in respect of which review is sought is not the conduct of the respondent in conducting the audit. Rather it is now in the conduct which led to a decision to deny the applicant an informal review of the decision to disallow GST entitlements claimed by Ivyside of which the applicant is a director, public officer and shareholder. If the complaint is the refusal to conduct an informal review, the respondent points to the fact that there is no evidence of any request to do so or any refusal to do so or any agreements to conduct an informal review. Further, if there was conduct on his part which formed part of the making of a decision (which is denied), it formed part of the process of making or refusing to amend a calculation of tax under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (the GST Act) and as such would not be capable of review under the ADJR Act as it is excluded under Sch 1(e). If the conduct by the respondent can be said to be conduct for the purpose of making a decision, then the decision in question is that of the Commissioner of Taxation (the Commissioner) to disallow GST input tax credits claimed by Ivyside for the July 2006-September 2006 quarter. The company has had appellate procedures available to it in respect of the decision made by or on behalf of the Commissioner.APPROACH TO COMPETENCY CHALLENGE

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MCKERRACHER J
By s 3(d) the definition of ‘decision to which this Act applies’ is narrowed by the exclusion of decisions included in any of the class of decisions set out in Sch 1. Schedule 1 of the ADJR Act relevantly provides:Schedule 1—Classes of decisions that are not decisions to which this Act applies…(e)decisions making, or forming part of the process of making, or leading up to the making of, assessments or calculations of tax, charge or duty, or decisions disallowing objections to assessments or calculations of tax, charge or duty, or decisions amending, or refusing to amend, assessments or calculations of tax, charge or duty, under any of the following Acts:A New Tax System (Goods and Services Tax) Act 1999A New Tax System (Luxury Car Tax) Act 1999A New Tax System (Wine Equalisation Tax) Act 1999Customs Act 1901Customs Tariff Act 1995Excise Act 1901Fringe Benefits Tax Assessment Act 1986Fuel Tax Act 2006Income Tax Assessment Act 1936Income Tax Assessment Act 1997Petroleum Resource Rent Tax Assessment Act 1987Superannuation Guarantee (Administration) Act 1992Taxation Administration Act 1953, but only so far as thedecisions are made under Part 3-10 in Schedule 1 to that ActTraining Guarantee (Administration) Act 1990Trust Recoupment Tax Assessment Act 1985;…Note: Subdivision B deals with the making, reduction and revocation of estimates of certain liabilities.(f)decisions of the Commissioner of Taxation under subsection 3E(1), 3G(1) or 3H(1) of the Taxation Administration Act 1953;(g)decisions under Part IV of the Taxation Administration Act 1953;(ga)decisions under section 14ZY of the Taxation Administration Act 1953 disallowing objections to assessments or calculations of tax, charge or duty;… There are several relevant taxation provisions which arise in the context of the various concerns raised by the applicant at different times. They include the following:Income Tax Assessment Act 1936264 Commissioner may require information and evidence(1)The Commissioner may by notice in writing require any person, whether a taxpayer or not, including any officer employed in or in connexion with any department of a Government or by any public authority:(a)to furnish him with such information as he may require; and(b)to attend and give evidence before him or before any officer authorized by him in that behalf concerning his or any other person’s income or assessment, and may require him to produce all books, documents and other papers whatever in his custody or under his control relating thereto.(2)The Commissioner may require the information or evidence to be given on oath or affirmation and either verbally or in writing, and for that purpose he or the officers so authorized by him may administer an oath or affirmation.(3)The regulations may prescribe scales of expenses to be allowed to persons required under this section to attend.Taxation Administration Act 1953Division 353—Powers to obtain information and evidence353-10 Commissioner’s power(1)The Commissioner may by notice in writing require you to do all or any of the following:(a)to give the Commissioner any information that the Commissioner requires for the purpose of:(i)the application of an *indirect tax law in relation to you or any other entity; or(ii)the administration or operation of this Schedule (other than Division 340);(b)to attend and give evidence before the Commissioner, or an individual authorised by the Commissioner, for the purpose of:(i)the application of an indirect tax law in relation to you or any other entity; or(ii)the administration or operation of this Schedule (other than Division 340);(c)to produce to the Commissioner any documents in your custody or under your control for the purpose of:(i)the application of an indirect tax law in relation to you or any other entity; or(ii)the administration or operation of this Schedule.Note: Failing to comply with a direction can be an offence against section 8C.(2)The Commissioner may require the information or evidence:(a)to be given on oath or affirmation; and(b)to be given orally or in writing.For that purpose, the Commissioner or the officer may administer an oath or affirmation.(3)The regulations may prescribe scales of expenses to be allowed to entities required to attend before the Commissioner or the officer.CONTENTIONSThe Respondent

Ratio Decidendi

Legal Principle Established

Established by: MCKERRACHER J

Indeed the High Court went on to observe that even though a decision taken may have a critical effect for the operation of the federal statute, if it is a decision made ‘dehors’ the federal statute, it would be un-reviewable. CONSIDERATION In the present circumstances, although the conduct of which complaint is made was carried out pursuant to statutory power, be it the audit or the alleged refusal to informally review, it does not constitute conduct for the purpose of making a decision in the sense contemplated in s 3 of the ADJR Act or as explained by the Chief Justice in Bond 170 CLR 321. In the language of Fox ACJ in Evans v Friemann (1981) 35 ALR 428 at 431 the relevant decision or conduct did not constitute a decision which was final and conclusive for immediate purposes at least. It was not the ultimate or operative determination of an issue as distinct from the determination of issues arising in the course of making such an ultimate decision (Social Services, Director-General of v Chaney (1980) 31 ALR 571). The best guidance for this is the clear language of Mason CJ in Bond 170 CLR 321 that the decision will generally but not always entail a decision which is final or operative and determinative, at least in a practical sense and a conclusion reached that is a step along the way in the course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision unless the statute provided for the making of a finding or ruling on that point so that the decision, though an indeterminate decision, might accurately be described as a decision under an enactment. When it comes to the consideration of policy, the competing policies on the one hand of permitting aggrieved persons to challenge administrative decisions and on the other, enabling efficient administration of government processes provides some guidance. If the legislation has provided other means of challenging decisions rather than judicial review under the ADJR Act, at least insofar as policy is concerned, availability of a right of challenge is not withheld. In Edelsten v Health Insurance Commission (1990) 27 FCR 56 the Full Court held that the decisions of the Commission to refer a matter for investigation to a committee were not reviewable as they were not decisions affecting rights and were at a very early stage of the administrative process for determining a possible contravention. They were no more than steps in a process which might lead to an operative determination. The decisions lacked any quality of finality and were not substantive determinations. CONCLUSION The original complaint was the oppressive conduct of an audit. That complaint appears to have been (emphatically) replaced by the applicant with a complaint that he was refused an informal review. In my view, the alleged actions or conduct of which complaint has been raised by the applicant did not constitute a decision of a reviewable nature within the meaning of the ADJR Act and the authorities. There was no substantive determination. There was no decision having the character or quality of finality. It was not a decision which affected in any way or in any direct sense the applicant’s legal rights and obligations.