Phillip Same Accountants Pty Ltd v Tax Practitioners Board

In the case of Phillip Same Accountants Pty Ltd v Tax Practitioners Board, the applicant sought to stay or suspend the dismissal of their appeal to the Court by Middleton J, or alternatively, to require the Board to treat the applicant as a registered tax agent until the appeal was heard and determined. The Tax Practitioners Board opposed the application, arguing that the applicant's registration had expired and they were no longer authorised to act as a tax agent. The Court was required to decide whether it had the inherent jurisdiction to stay or suspend the operation of Middleton J’s order pending the hearing and determination of the appeal, and whether it should grant an interlocutory injunction requiring the Board to treat the applicant as a registered tax agent.

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.