CATCHWORDS – PRACTICE AND PROCEDURE – direction on remittal from Federal Court that, if parties agree, same member to hear matter – parties consented – member’s duty to disqualify self if knows pre-judged matter or if fair-minded members of the public would have a reasonable apprehension that pre-judged the matter – pre-judged matter and satisfied would be that reasonable apprehension – member disqualified self.
Tribunal: Deputy President S A Forgie Date: 6 March 2009 Place: Melbourne
Decision:I disqualify myself from being constituted as a member of the Tribunal to hear the matter.
SA Forgie
Deputy President
REASONS FOR DECISION
On 27 November 2008, Middleton J allowed an appeal from my decision in Re Toohey and Tax Agents’ Board of Victoria.[1] I had affirmed a decision of the Tax Agents’ Board of Victoria (the Board) refusing Mr Toohey’s application to be re-registered as a tax agent. The Board had…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Re Toohey and Tax Agents' Board [2009] AATA 142
Case
[2009] AATA 142
Decision Date
CaseChat Overview and Summary
The matter concerned a decision by the Tax Agents' Board of Victoria to refuse an application by Mr Toohey for re-registration as a tax agent. The Board had found that he was not a fit and proper person to be a tax agent. Mr Toohey appealed to the Administrative Appeals Tribunal, which affirmed the Board's decision. The Full Court of the Federal Court, however, found that the Tribunal had erred in its approach to the second primary issue and remitted the matter to the Tribunal. In light of the remittal, the Tribunal considered whether it should hear the matter. It concluded that it should not and disqualified itself from doing so. The Tribunal found that it had pre-judged the matter and that fair minded people reading its reasons for decision might reasonably apprehend or suspect that it had. It also found that it had already expressed a concluded view on the very matters that it would have to consider on a rehearing. The Tribunal concluded that, in light of its duty to disqualify itself, it could not hear the matter on remittal.