Shaheed v Tax Agents' Board of New South Wales

[2007] FCA 1418

FEDERAL COURT OF AUSTRALIA

Shaheed v Tax Agents’ Board of New South Wales [2007] FCA 1418

MOHAMMED SHAHEED v TAX AGENTS' BOARD OF NEW SOUTH WALES
NSD 2273 OF 2006

ALLSOP J
6 SEPTEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2273 OF 2006

BETWEEN:	MOHAMMED SHAHEED Applicant
AND:	TAX AGENTS' BOARD OF NEW SOUTH WALES Respondent
JUDGE:	ALLSOP J
DATE OF ORDER:	6 SEPTEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The amended notice of appeal dated 25 July 2007 be struck out.

2.Leave be granted to the applicant on or before 28 September to file and serve:

(a) any further amended notice of appeal under section 44 of the Administrative Appeal Tribunal Act 1975 (Cth);

(b)   such other process embodying any complaint as to the decision of the Administrative Appeal Tribunal as he is advised. (The District Registrar is directed to place any such proceedings in the docket of Allsop J, returnable at the date referred to in 3 below).

3.The proceeding and any further proceeding filed pursuant to leave in 2(b) above be stood over and be returnable respectively, to and at 9:30 am on 18 October 2007.

4.Leave be granted to the respondent to file and serve on or before 11 October 2007 any notice of motion concerning the further amended notice of appeal or further process, returnable for directions on 18 October 2007.

5.The applicant pay the costs of the respondent of preparation of written submissions for today’s hearing and of appearance by solicitor and counsel today, such costs to be assessed on an indemnity basis.

6.In the absence of agreement as to those costs, the respondent have leave to tax or assess said costs forthwith, with the intention that they be payable upon taxation or assessment and in any event.

7.There be set down for hearing on 26 October 2007 any notice of motion of the respondent brought pursuant to leave in 4 above, or, if such motion not be filed, the hearing of the application of the further amended notice of appeal and any other proceeding brought pursuant to leave in 2(b) at 10.15 am.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2273 OF 2006

BETWEEN:	MOHAMMED SHAHEED Applicant
AND:	TAX AGENTS' BOARD OF NEW SOUTH WALES Respondent

JUDGE:	ALLSOP J
DATE:	6 SEPTEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me an application for an adjournment of what is, in effect, a part heard case. The application before me needs to be put in some context, which I will seek to do as succinctly as I can. The applicant, who is a registered tax agent, commenced proceedings in November last year against the Tax Agents’ Board of New South Wales (the “Board”). The proceeding was a notice of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), complaining about the decision of the Administrative Appeals Tribunal (the “Tribunal”) on 17 October 2006, in which the Tribunal affirmed the decision of the Board to refuse re-registration of Mr Shaheed as a tax agent.

2. The Board, and later the Tribunal, were not satisfied that Mr Shaheed was a fit and proper person for the purposes of s 251JC(1)(a)(i) of the Income Tax Assessment Act 1936 (Cth). The first difficulty with the undertaking of the case in this Court was the unfortunate circumstance that the file was lost in the Tribunal. This necessitated the reconstitution of what happened before the Tribunal, by the co-operation of the solicitors. That occurred and by July 2007 three volumes of appeal papers had been filed, which I have marked Exhibits A1, A2, and A3.

3. At a directions hearing on 10 July 2007, I raised with the parties and, in particular, Mr Powrie, the form of the notice of appeal.  I raised that matter in the context of referring Mr Powrie to various decisions of this Court including Birdseye v Australian Securitiesand Investments Commission (2003) 76 ALD 321 and Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Limited (2003) 133 FCR 290. I suggested that the notice of appeal be redrafted. It was, and an amended notice of appeal was filed on 25 July 2007. The matter was set down for hearing today, and detailed submissions were filed by the applicant on 10 August 2007.

4. On 27 August 2007, the respondent filed submissions about a dismissal of the application.  That dismissal was sought on two bases: under s 31A of the Federal Court of Australia Act1976 (Cth) and Order 53, rule 20(1)(a) of the Federal Court Rules dealing with want of prosecution. (The want of prosecution can be understood as want of prosecution in the proper form.) The submissions of the respondent were limited to an attack on the form of the amended notice of appeal by reference, in particular, to the cases to which I referred Mr Powrie and the other parties on 10 July 2007. This morning, without opposition, I dispensed with the need, if there were a need, for any notice of motion to be filed by the respondent and the respondent, in effect, moved for those orders before the applicant began his address.

5. The evidence in the case proper was taken, being the marking of the three volumes of appeal papers, together with the reading of two affidavits, one of Mr Powrie and one of Mr Skinner’s instructing solicitor.  During the discourse between myself and Mr Skinner, which was designed, for my part, not only for the benefit of Mr Skinner, but for Mr Powrie at the bar table, it became apparent that the amended notice of appeal in its current form is fatally flawed.  I will not set out all that was discussed between Mr Skinner and myself.  It is sufficient to say that paragraphs (a) and (c) of the amended notice of appeal do not identify any relevant question of law.  If set in their terms and simply using their terms, the answer to them is “no”. 

6. Looking at question (b), it is capable of being understood as a question of law, the answer to which is probably “yes”. But it does not have any particular support in these submissions, and does not appear to be the foundation of any particular complaint at the moment. The orders sought are that the decision be set aside. Then, in part of the amended notice of appeal dealing with grounds, a whole raft of complaints are set out, redolent of s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Some of the questions appear to be also questions of fact, such as the first sentence in paragraph two. At the commencement of the proceeding I asked Mr Powrie as to whether he was limiting his attack on the decision to a s 44 appeal. He said he was.

7. It seems to me that the notice of appeal goes beyond anything capable of being contained within s 44, at least as it is currently drafted. It should be remembered that Order 53 rule 3(2)(d) of the Federal Court Rules identifies the role of the section of the form of the notice of appeal in dealing with grounds. That is, it should contain a brief, but specific, body of grounds relied upon in support of the order sought. It is not another place where the questions of law are either stated or hinted at. It is the grounds which, in effect, identify why the order should be made in the light of the answer to any question set out in section A. These matters are not matters of empty formalism. If they were I would not be dealing with them.

8. As the authorities make clear, and as the statute makes clear, the question or questions of law is or are the limit and subject matter of the controversy that this Court deals with.  It is not a simple precursor to more general debate about the legitimacy of the Tribunal’s decision.  Rather, it is the identification of what the Court is doing and what it is authorised by the statute to do.  Such grounds as are sought to be raised by the applicant may be able to be identified as questions of law.  They have not currently been so identified.  It may be that the proper framework for the complaint about the Tribunal’s decision is a failure to accord or reflect a proper lawful approach to the decision making, which might give rise to complaints able to be vindicated under the Administrative Decisions (Judicial Review) Act or s 39B of the Judiciary Act 1903 (Cth). Whether or not that is the case, I do not decide today. However, it seems to me that if Mr Shaheed is to have an opportunity to complain about the matters contained within the submissions, the proceedings need to be restructured.

9. Real issues arise as to whether I should adjourn, because at the moment Mr Shaheed is able to practise because of a stay having been given by the Tribunal to its order.  Thus, the Court finds itself in the position that someone whom neither the Board nor the Tribunal was satisfied was fit and proper to be a tax agent, is still practising as a tax agent.  Questions of protection of the public are involved.  However, it is important that Mr Shaheed has his case disposed of as promptly as possible.  A significant delay occurred by reason of the loss of the file, for which neither the parties nor the Court was responsible.  Mr Powrie was ill during the course of the year, and there was an adjournment.  Mr Skinner has attended today with limited submissions not dealing with the full gamut of the applicant’s submissions, on the legitimate basis that the notice of appeal was fatally flawed.  Mr Skinner opposes the adjournment and says that the application should be dismissed.  I do not think that that is the appropriate course.  I do propose to strike out the amended application, however, and take steps to bring the matter back before me promptly with an amended application, if it can be drafted.

10. I will deal with the matter in two weeks’ time.  By that time, I expect the applicant, through his legal advisers, to reformulate such claim or claims as he wishes to propound, under whatever Act he wishes to rely upon, with clarity and precision so that the legitimacy or otherwise of the applicant’s claims can be assessed prior to the expenditure of any further costs.  This may require the filing of a further initiating process, given that current initiating process is a notice of appeal.  I leave those considerations to the advisers of the applicant.  That prompt bringing forward of the identified complaints of the applicant will then permit the respondent to assess its position, and as to whether or not it has any difficulty procedurally in dealing with the matters on the merits, if I may use that expression, at a later date this year.  That, I think, protects the public.  The respondent needs protecting in terms of costs.  I see no reason why the applicant should not pay all the costs thrown away by today.  I have real difficulty in seeing how there has been otherwise than a complete waste of costs of today, and I think those costs should be paid.  I see no reason why they should not be paid forthwith.

11. Therefore the orders of the Court will be subject to hearing any of the parties on the form of the orders, as follows:

    1.        The amended notice of appeal dated 25 July 2007 be struck out.

    2.        Leave be granted to the applicant on or before 28 September to file and serve:

    (a)any further amended notice of appeal under section 44 of the Administrative Appeal Tribunal Act 1975 (Cth);

    (b)such other process embodying any complaint as to the decision of the Administrative Appeal Tribunal as he is advised. (The District Registrar is directed to place any such proceedings in the docket of Allsop J, returnable at the date referred to in 3 below).

    3.The proceeding and any further proceeding filed pursuant to leave in 2(b) above be stood over and be returnable respectively, to and at 9:30 am on 18 October 2007.

    4.Leave be granted to the respondent to file and serve on or before 11 October 2007 any notice of motion concerning the further amended notice of appeal or further process, returnable for directions on 18 October 2007.

    5.The applicant pay the costs of the respondent of preparation of written submissions for today’s hearing and of appearance by solicitor and counsel today, such costs to be assessed on an indemnity basis.

    6.In the absence of agreement as to those costs, the respondent have leave to tax or assess said costs forthwith, with the intention that they be payable upon taxation or assessment and in any event.

    7.There be set down for hearing on 26 October 2007 any notice of motion of the respondent brought pursuant to leave in 4 above, or, if such motion not be filed, the hearing of the application of the further amended notice of appeal and any other proceeding brought pursuant to leave in 2(b) at 10.15 am.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop J.

Associate:
Dated:       13 September 2007

Counsel for the Applicant:	Mr A Powrie
Solicitor for the Applicant:	Powrie and Associates
Counsel for the Respondent:	Mr B Skinner
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 September 2007
Date of Judgment:	6 September 2007