FEDERAL COURT OF AUSTRALIA
Phillip Same Accountants Pty Ltd v Tax Practitioners Board [2011] FCA 458
Citation: Phillip Same Accountants Pty Ltd v Tax Practitioners Board [2011] FCA 458 Parties: PHILLIP SAME ACCOUNTANTS PTY LTD v TAX PRACTITIONERS BOARD File number(s): VID 539 of 2010 Judge: RYAN J Date of judgment: 9 May 2011 Date of hearing: 29 April 2011 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 19 Counsel for the Applicant: Mr S Ure Solicitor for the Applicant: Alan Shnider & Co Counsel for the Respondent: Mr P Gray Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 539 of 2010
BETWEEN: PHILLIP SAME ACCOUNTANTS PTY LTD
ApplicantAND: TAX PRACTITIONERS BOARD
Respondent
JUDGE:
RYAN J
DATE OF ORDER:
9 MAY 2011
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The motion on the amended notice filed on 27 April 2011 be refused.
2.The costs of each party of and incidental to the said motion be the costs of that party in the appeal constituted by proceedings No VID 121 of 2011.
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 Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 539 of 2010
BETWEEN: PHILLIP SAME ACCOUNTANTS PTY LTD
ApplicantAND: TAX PRACTITIONERS BOARD
Respondent
JUDGE:
RYAN J
DATE:
9 MAY 2011
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
On 31 January 2011 Middleton J dismissed an application by the applicant, Phillip Same Accountants Pty Ltd. The application was by way of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) from a decision of the Administrative Appeals Tribunal (“the Tribunal”) given on 11 June 2010. By that decision, the Tribunal affirmed a decision of the respondent, the Tax Practitioners Board (“the Board”), formerly the Tax Agents Board, refusing to re-register the applicant as a tax agent pursuant to s 251JC(1)(c) of the Income Tax Assessment Act 1936 (Cth) (“the Income Tax Assessment Act”).
On 21 February 2011, the applicant filed a notice of appeal to a Full Court of this Court against the order of Middleton J of 31 January 2011. That appeal is presently in the list of cases to be fixed for hearing before a Full Court in August of this year.
By an amended notice of motion filed on 27 April 2011, the applicant seeks orders that:
1.paragraphs 2 and 3 of the orders of Middleton J dated 31 January 2011 be stayed pending the determination of this appeal or alternatively,
2.the respondent renew the applicant’s registration as a tax agent on an interim basis, pending the hearing and determination of the appeal and, if the matter is remitted to the Administrative Appeals Tribunal, the grant of a further stay by the Administrative Appeals Tribunal.
Paragraphs 2 and 3 of…
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- Case
- [2011] FCA 458
- Decision Date
CaseChat Overview and Summary
The Court found that it had the inherent jurisdiction to stay or suspend the operation of an order made in the original jurisdiction of the Court pending the hearing and determination of an appeal against the same order. However, the exercise of this power was not the same as a grant of a stay of execution of an order pending an appeal. In this case, since Middleton J’s order did no more than dismiss the applicant’s appeal, there was nothing in that order to execute or enforce. The Court held that the application for a stay or suspension of Middleton J’s order, and the alternative claim for an interlocutory injunction requiring the Board to treat the applicant as a registered tax agent, were each to be resolved in the light of similar discretionary factors. The Court found that the factors against exercising the discretion favourably to the applicant outweighed those in favour, and therefore refused the amended motion on notice filed on 27 April 2011.
The Court ordered that the costs of each party of and incidental to the said motion be the costs of that party in the appeal constituted by proceedings No VID 121 of 2011. The Court noted that it could accord the applicant’s appeal a speedy hearing in the May Full Court sittings, but the applicant had declined that invitation because of the unavailability of Counsel retained by it for the appeal. The Court also indicated that if it was persuaded in the course of hearing the appeal that the applicant had a strong case for setting aside Middleton J’s order, it could itself, if necessary, frame appropriate interlocutory relief to give effect to that view.
Orders
Orders of the court
1. The motion on the amended notice filed on 27 April 2011 be refused.
2. The costs of each party of and incidental to the said motion be the costs of that party in the appeal constituted by proceedings No VID 121 of 2011.
Note:
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
It was contended by Mr Gray of Counsel for the Board, that the applicant’s continuing registration, as deemed to be in existence in accordance with Re Nelson and the Tax Agents Board noted at [5] above, ended on the day on which the registration would have expired under the old law, i.e, s 251JC(4) of the Income Tax Assessment Act, as operated on by s 43(5C) of the AAT Act quoted at [8] above. That occurred as a matter of historical fact when the appeal was determined by the order of Middleton J on 31 January 2011 without any stay of that order having been granted.Consideration I accept that it is within the inherent jurisdiction of this Court to stay or suspend the operation of an order made in the original jurisdiction of the Court pending the hearing and determination of an appeal against the same order. The exercise of the power to which I have just referred is not the same as a grant of a stay of execution of an order pending an appeal, which is expressly provided for by O 37 r 10 of the Rules of this Court. In the present case, since the primary order of Middleton J did no more than dismiss the applicant’s application by way of appeal from the AAT, there was nothing in that order to execute or enforce. In my view, the application for a stay in the sense of a suspension of Middleton J’s order, and the alternative claim for an interlocutory injunction requiring the Board to treat the applicant as the holder of a renewed tax agent’s licence are each to be resolved in the light of similar discretionary factors. Those in favour of the grant of relief including the following;(a)if the appeal succeeds and the applicant ultimately persuades the Tribunal, or the Board to renew its licence, the applicant will have been deprived, in the meantime, of the opportunity to conduct its practice as a tax agent and derive remuneration therefrom. Correspondingly, the applicant’s clients will be forced to go elsewhere to obtain the services of a tax agent during the interim which will include the end of the 2011 tax year.(b)the appeal is to be regarded as at least arguable. As Middleton J observed, at [37] of his reasons;… if the applicant can show that the Tribunal did not properly consider Mr Same’s past conduct and likelihood of future conduct, including a proper evaluation of his character and reputation, then the Tribunal would have made an error of law and the matter should be remitted to a differently constituted Tribunal for redetermination. Whether the Tribunal properly took into account the matters identified by his Honour depends on the proper interpretation of the Tribunal’s reasons as to which minds may reasonably differ. The factors which weigh against exercising the discretion favourably to the applicant include;(a)the grant of a stay or suspension of a final order is, as Mason J pointed out in Re Marks (supra), an exceptional course. A similar observation can be made of the grant of a mandatory interlocutory injunction against a statutory body which has the same effect.(b)it is doubtful whether a suspension of an order which finally determines an appeal means that the appeal has no longer been “determined” so as to bring to an end a stay brought about by operation of s 43(5C) of the AAT Act.(c)there is a strong presumption that, the decision of the Board and its affirmation by the Tribunal were correct, as Middleton J has held. In those circumstances, there is a public interest in excluding from practice a tax agent whose nominee is considered by those statutory bodies not to be a fit and proper person for the purposes of registration.(d)The applicant has, in fact, not practised as a tax agent since 31 January 2011.On 27 April 2011, the solicitor for the Board wrote to the solicitors for the applicant contending that the applicable legislative provisions precluded “your client from legally providing tax agent services after 31 January 2011, the date that his Honour Justice Middleton affirmed the … Tribunal’s decision of Deputy President McDonald.” That letter concluded with these paragraphs;3.We seek confirmation that your client has not been providing tax agent services since 31 January 2011.4.Our client now opposes your client’s application for a further stay, given the period of time that has elapsed since 31 January 2011. Your client should not have been providing tax agent services since its appeal was determined by Justice Middleton, and as a result this part of its practice should already have been discontinued for the last three months, which means that your client would not be prejudiced by a further stay application being refused.On 28 April 2011 the applicant’s solicitors replied advising that;We are instructed by our client that our client has not provided any Taxation or Bass Services since 31st January 2011.There is no evidence as to what the applicant has done since 31 January 2011 to preserve the continuity of its tax agent’s practice or to retain the goodwill of its clients. Nor has the Court been apprised in any specific terms of how a stay from now until the hearing of the appeal would be used to change the situation which has existed since 31 January 2011. I indicate parenthetically that the Court has indicated that it could accord the applicant’s appeal a speedy hearing in the May Full Court sittings. However, the applicant has declined that invitation because of the unavailability of Counsel retained by it for the appeal.(e)If the Full Court is persuaded in the course of hearing the appeal that the applicant has a strong case for setting aside Middleton J’s order it can itself, if necessary, frame appropriate interlocutory relief to give effect to that view.