Parker v Ramanathan

Case [2009] FCA 931

FEDERAL COURT OF AUSTRALIA

Parker v Ramanathan [2009] FCA 931

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(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
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 SOTHI RAMANATHAN

WAD 80 of 2008

MCKERRACHER J
25 AUGUST 2009
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 80 of 2008
BETWEEN:

ANDREW STEPHEN PARKER
Applicant
AND:

SOTHI RAMANATHAN
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 80 of 2008
BETWEEN:

ANDREW STEPHEN PARKER
Applicant
AND:

SOTHI RAMANATHAN
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 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 decision the subject of the application was a decision making or forming part of the process of making assessments under the A New…

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AGLC
Parker v Ramanathan [2009] FCA 931
Case
[2009] FCA 931
Decision Date

CaseChat Overview and Summary

The case of Parker v Ramanathan involves the applicant, Mr Michael Parker, seeking to review a decision made by the respondent, which is not explicitly stated in the text but is implied to be the Australian Taxation Office (ATO). The dispute pertains to the disallowance of GST input tax credits claimed by Ivyside Pty Ltd, a company of which Mr Parker is the director, public officer, and shareholder. The application for judicial review was lodged under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). The primary legal issue before the court was whether the application met the jurisdictional requirements to be considered under the ADJR Act, particularly focusing on whether the alleged refusal to informally review the tax assessment constituted a reviewable decision.

The court examined the nature of the decision in question, determining whether it was a final and conclusive determination as required by the ADJR Act. It concluded that the alleged refusal to informally review the tax assessment did not constitute a decision that was final and conclusive for immediate purposes. Instead, it was part of a process leading up to the ultimate decision by the Commissioner to disallow the GST input credits. Furthermore, the court noted that even if the refusal to review were considered a reviewable decision, it could only be challenged by Ivyside Pty Ltd, not by Mr Parker individually. Consequently, the court found that the applicant lacked standing to bring the claim.

The court's reasoning led to the conclusion that the application did not meet the jurisdictional requirements of the ADJR Act. The court upheld the respondent's objection to the competency of the application and dismissed the claim. The applicant was ordered to pay the respondent's costs, to be taxed if not agreed. This outcome highlights the importance of meeting jurisdictional criteria and having standing to bring a judicial review application under the ADJR Act.

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, Mr Michael Parker (the respondent to matters WAD79 of 2008 and WAD81 of 2008) 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 applicant seeks to review a decision of the respondent in raising an amended tax assessment and penalties for the July-September quarter of 2006. It is said that the respondent in making that decision has acted oppressively towards the applicant, is acting in breach of the Taxpayer’s Charter and in breach of the ATO Receivables Policy, has abused his power and has purposefully caused mental and emotional pain and suffering on the applicant. However, in an affidavit in support of his application, the applicant stresses that the decision of which review is sought is not that decision but rather the decision of the respondent to deny and refuse him the right to an informal review of the GST issue relating to a company of which he is the director, public officer and shareholder. The applicant stresses that it was not the decision made by the respondent on or around 3 October 2007 to raise a tax assessment or an amended statement or penalties for the relevant quarter. Accordingly, these reasons focus on the substituted ground of complaint. The respondent complains that there was no evidence put forward which could possibly support the allegations of oppressive, harassing or unlawful behaviour or, indeed, any conduct other than the alleged issue by the respondent of the amended assessment in relation to the GST liability of Ivyside. Assuming that the complaint is that of refusing the informal review, the respondent points to the fact that there is no evidence that such a review was sought, refused or agreed to. These submissions are correct.APPROACH TO COMPETENCY CHALLENGE

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, the alleged refusal to informally review does not constitute 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).CONCLUSION The original complaint was the raising of the amended tax assessment and penalties. That complaint appears to have been (emphatically) replaced by the applicant with a complaint to refuse an informal review. In my view, the alleged actions or conduct of which complaint was originally raised by the applicant simply formed part of a process of leading up to the making of a decision by the Commissioner to disallow the GST input credits claimed by Ivyside. The alleged failure to informally review is not a relevant decision or conduct. Further and as a distinct ground, even if there were an appropriate basis for review, it could be advanced only by the company, Ivyside not by the applicant. However, if this were the only issue standing in the way of the competency of this application, I may have granted any application to amend the identity of the applicant, or for that matter, the respondent. The difficulty with the competency of the application however, in my view, is much more fundamental, going to jurisdiction. The respondent’s jurisdictional objection to competency must be upheld and the claim dismissed. The applicant is to pay the costs of the respondent to be taxed if not agreed.