Parker v Parker

Case [2009] FCA 930

FEDERAL COURT OF AUSTRALIA

Parker v Parker [2009] FCA 930

ADMINISTRATIVE LAW – judicial review – application brought pursuant to Administrative Decisions (Judicial Review)Act 1977 (ADJR Act) to review decision of respondent – objection to competency of application – whether decision open to review – meaning of ‘decision’ under ADJR Act – whether substantive determination – whether applicant has standing to bring application

A New Tax System (Goods and Services Tax) Act 1999 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 3(1), 3(2), 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
Bennett Honda Pty Ltd v Deputy Commissioner of Taxation (1984) 4 FCR 99
Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317
Century Yuasa Batteries Pty Ltd v Commissioner of Taxation (1997) 73 FCR 528
Electricity Supply Assn of Australia Ltd v Australian Competition & Consumer Commission (2001) 113 FCR 230
Evans v Friemann (1981) 35 ALR 428
Golden City Car & Truck Centre Pty Ltd v Deputy Federal Commissioner of Taxation (1999) 56 ALD 177
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
Madera v Commissioner of Taxation (2004) 141 FCR 95
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
Ruddy v Commissioner of Taxation (1998) 82 FCR 337
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 79 of 2008

MCKERRACHER J
25 AUGUST 2009
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 79 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 79 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 decision under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The decision in question is that of the respondent, an employee of the Australian Taxation Office (ATO).

  2. The applicant has issued four other sets of…

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Details
AGLC
Parker v Parker [2009] FCA 930
Case
[2009] FCA 930
Decision Date

CaseChat Overview and Summary

In the case of Parker v Parker, the applicant sought review of a decision made by the respondent regarding the disallowance of GST input tax credits claimed by the applicant's company, Ivyside Pty Ltd. The primary complaint was not the initial disallowance of the GST credits but the refusal of the respondent to provide an informal review of the decision. The applicant argued that the decision to deny the informal review constituted a breach of natural justice and other grounds under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act).

The legal issues before the court were whether the decision to disallow the GST credits and the subsequent refusal to provide an informal review were decisions subject to review under the ADJR Act. The court examined whether these decisions met the criteria of a 'decision of an administrative character' as defined by the ADJR Act, specifically focusing on whether they were final, operative, and determinative.

The court reasoned that the decision to disallow the GST credits, although made under statutory authority, did not constitute a final or determinative decision as it did not conclude the matter. Similarly, the refusal to provide an informal review was not a final decision because it did not definitively resolve the applicant's complaint. The court referred to previous cases, such as Bond v R and Century Yuasa Batteries Pty Ltd v Commissioner of Taxation, to emphasize that a decision must be final and conclusive to be reviewable under the ADJR Act.

Ultimately, the court determined that neither the disallowance of the GST credits nor the refusal to provide an informal review were substantive decisions that could be reviewed under the ADJR Act. The court held that these decisions lacked the necessary element of finality and did not constitute a reviewable decision.

In light of this reasoning, the court upheld the respondent's objection to the competency of the claim and dismissed the application. The applicant was ordered to pay the respondent's costs.

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 5 of the ADJR Act. They are as follows: (a)that a breach of the rules of natural justice occurred in connection with the making of the decision;(b)that procedures that were required by law to be observed in connection with the making of the decision were not observed;(c)that the decision was not authorized by the enactment in pursuance of which it was purported to be made;(d)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;(e)that the decision involved an error of law, whether or not the error appears on the record of the decision;(f)that there was no evidence or other material to justify the making of the decision;(g)that the decision was 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 In this matter, the complaint raised is as to the disallowance of the GST entitlements for the July-September quarter of 2006 ‘such entitlements being bona fide ones that should be allowed’. The applicant asserts that the decision of the respondent included ‘purposeful mental and emotional pain and suffering the respondent is inflicting on the applicant; the applicant seeks relief from this harassment; oppression; and unlawful activities of the respondent’. However, in the affidavit in support of the application, the applicant clarifies that the decision of which he is seeking review was the decision by the respondent to deny and refuse him the right to an informal review of a GST issue relating to Ivyside. He stresses in his affidavit that it is not the original decision made by the respondent to disallow the GST entitlements but rather the decision to deny and refuse him an informal review. In support of that claim he annexes a document entitled ‘Having your GST issue reviewed’. That document under the heading ‘Informal Reviews’ reads:You can request an informal review of the GST decision we made or GST advice we provided, including private rulings. Generally, an informal review is conducted by an officer who is not involved in the original decision. We will advise you of the outcome of the review, which could include changing the decision or advice, or confirming it. If you’d like to request an informal review, you should contact the person handling your case or the office where the decision was made.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MCKERRACHER J
Section 5 of the ADJR Act relevantly provides as follows:5 Applications for review of decisions(1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;(b)that procedures that were required by law to be observed in connection with the making of the decision were not observed;(c)that the person who purported to make the decision did not have jurisdiction to make the decision;(d)that the decision was not authorized by the enactment in pursuance of which it was purported to be made;(e)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;(f)that the decision involved an error of law, whether or not the error appears on the record of the decision;(g)that the decision was induced or affected by fraud;(h)that there was no evidence or other material to justify the making of the decision;(j)that the decision was otherwise contrary to law.(2)The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:(a)taking an irrelevant consideration into account in the exercise of a power;(b)failing to take a relevant consideration into account in the exercise of a power;(c)an exercise of a power for a purpose other than a purpose for which the power is conferred;(d)an exercise of a discretionary power in bad faith;(e)an exercise of a personal discretionary power at the direction or behest of another person;(f)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;(g)an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;(h)an exercise of a power in such a way that the result of the exercise of the power is uncertain; and(j)any other exercise of a power in a way that constitutes abuse of the power.(3)The ground specified in paragraph (1)(h) shall not be taken to be made out unless:(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist. Relevantly, s 3 of the ADJR Act identifies the decisions to which the Act applies as a ‘decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition)’:(a)under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or(b)by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment; other than:(c)a decision by the Governor-General; or(d)a decision included in any of the classes of decisions set out in Schedule 1.

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 decision of which complaint was originally made was carried out pursuant to statutory power, it does not constitute, in my view, 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. Nor does the alleged refusal to informally review. 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 Century Yuasa Batteries Pty Ltd v Commissioner of Taxation (1997) 73 FCR 528 it was held that the Commissioner’s decision to seek to recover an amount equal to withholding tax and penalty for late payment due by the applicant and the demand for payment of those sums was not reviewable because it did not constitute a substantive determination. This was because it lacked the necessary element of finality as liability for payment of those sums arose from the operation of the ITAA 1936 and not in consequence of any reviewable decision of the Commissioner. His Honour said (at 540-541):Section 221YR(1) (the Commissioner's power to sue for the money as a debt due to the Commonwealth) and s 8 (the Commissioner's power of general administration of the ITAA) do not of themselves give force or effect to the decision to demand payment of a sum of money which the Commissioner claims is payable under the ITAA and as such it is not a decision made under an enactment (Hutchins v Commissioner of Taxation (1996) 65 FCR 269 at 273 per Black CJ and at 278-279 per Spender J). Even if the view of Lockhart J in Hutchins v Commissioner of Taxation is adopted, namely that the power of the Commissioner to sue for the recovery of the amount due as a debt to the Commonwealth authorises the Commissioner to do all things reasonably necessary to recover the amount and thereby characterises the demand as a decision of an administrative character made under an enactment (at 276-277), that does not of itself make the demand a reviewable decision. The decision to seek to recover an amount equal to the withholding tax and penalty for late payment from the applicant, and the demand for payment of the same within 14 days, is not a substantive determination. It determines nothing. As such the decision lacks a necessary characteristic of a reviewable decision (Bond at 337; Hutchins at 274, 277). Nor does the demand have any practical effect on the applicant. If the demand is not met by the applicant because of an erroneous view that it is not liable to make the payment, any liability for additional tax for late payment arises from the operation of the ITAA and not in consequence of any reviewable decision of the Commissioner.