Re Toohey and Tax Agents' Board - [2009] AATA 142

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.

Administrative Appeals Tribunal Act ss 3, 20B(1), 23, 23A, 35(1A) and (3), 44(1), (4), (5) and (6)
Administrative Decisions (Judicial Review) Act 1977 s 16(1)(b)
Income Tax Assessment Act 1936 ss 251BC(3), 251JC(1)(a)
Judiciary Act 1903 s 39B
Migration Act 1958 ss 421(1) and (2), 424A, 474, 476(1)(f), 481(1)(b) and (d)

Blackman v Commissioner of Taxation (1993) 43 FCR 449
Industry Research & Development Board v IMT Ltd [1] [2001] FCA 85
Johnson v Johnson (2000) 201 CLR 488; 174 ALR 655; 74 ALJR 1380
JRL; Ex parte CJL (1986) 161 CLR 342; 60 ALJR; 66 ALR 239
Livesey v Bar Association of NSW [1] (1983) 151 CLR 288; 57 ALJR 420; 47 ALR 45
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518; 77 ALJR 786; 72 ALD 577
Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39
Peacock v Repatriation Commission [2007] FCAFC 156
Re Clare Strang and Siddha Yoga Foundation and Department of Immigration and Ethnic Affairs [1995] AATA 378
Re Polites and Another; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78; 65 ALJR 445; 100 ALR 634
Re Toohey and Tax Agents’ Board [2008] AATA 262; (2008)101 ALD 376
Re Maurice; Ex parte Attorney-General (Northern Territory) [1] (1987) 73 ALR 123; 17 FCR 422
R v Watson; Ex parte Armstrong (1976) 136 CLR 248; 50 ALJR; 9 ALR 551
Southern Equities Corp Ltd v Arthur Andersen [2001] SASC 58
Sun v Minister for Immigration and Ethnic Affairs (1979) 81 FCR 71; 151 ALR 505
SZEPZ v Minister for Immigration and Multicultural Affairs (2007) 159 FCR 291
Toohey v Tax Agents’ Board of Victoria (No 2) [2008] FCA 1796
Webb v The Queen (1994) 181 CLR 41; 122 ALR 41; 73 A Crim R 258 at 47; 44; 260
White v Repatriation Commission (1995) 39 ALD 42

DECISION AND REASONS FOR DECISION [2009] AATA 142

ADMINISTRATIVE APPEALS TRIBUNAL )

) 2007/1502
GENERAL ADMINISTRATIVE DIVISION )
Re:PETER TOOHEY
Applicant

And:TAX AGENTS’ BOARD
Respondent

DECISION

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

Case: [2009] AATA 142
Decision Date: 6 March 2009

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.

Orders