Sobczuk v Commissioner of Taxation
[2006] FMCA 13
•13 January, 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SOBCZUK v COMMISSIONER OF TAXATION | [2006] FMCA 13 |
| ADMINISTRATIVE LAW – Administrative Appeals Tribunal practice and procedure application under s.5 of the Administrative Decisions (Judicial Review) Act1977 inappropriate where final decision of AAT. |
| Administrative Decisions (Judicial Review) Act 1977, s.10(2)(b)(ii) Administrative Appeals Tribunal Act 1975, s.44 |
| Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 Duncan v Hotop [2004] FCA 274 |
| Applicant: | PEDRO SOBCZUK |
| Respondent: | COMMISSIONER OF TAXATION |
| File Number: | BRG423 of 2004 |
| Judgment of: | Jarrett FM |
| Hearing date: | 15 November, 2004 |
| Date of Last Submission: | 15 November, 2004 |
| Delivered at: | Brisbane |
| Delivered on: | 13 January, 2006 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Counsel for the Respondent: | Ms Lynch |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Pursuant to s.10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act1977 I refuse to grant the application filed on 20 November, 2003;
The notice of appeal filed on 19 July, 2004 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG423 of 2004
| PEDRO SOBCZUK |
Applicant
And
| COMMISSIONER OF TAXATION |
Respondent
REASONS FOR JUDGMENT
On 20 November, 2003 the applicant commenced an application for an order of review in respect of a decision of the Administrative Appeals Tribunal given on 29 October, 2003 (“the challenged decision”) in the Federal Court of Australia. Under the section of the prescribed form headed “The grounds of the application are:”, the applicant wrote “(as advised by Qld Legal Aid is under ADJR)”.
In his application, he seeks the following orders:
An order/declaration that:
(a)that AAT appoints a member who is not bias in favour of the Government (as a new employee fro the Comm Attorney General’s office) to deal with all omissions by Mr BJ McCabe
(b) Any other remedy available for the Court
Originally, both the current respondent and the member of the Administrative Appeals Tribunal that made the challenged decision were parties to the application. The application came before a Federal Court judge on 16 December, 2003 at which time the Administrative Appeals Tribunal member was given leave to withdraw as a party to the proceedings. The application was ordered to be transferred to this court if an “order 53 appeal is pursued”[1].
[1] That is, an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975
On 19 July, 2004 the applicant filed a notice of appeal purportedly pursuant to order 53 of the Federal Court Rules. The decisions appealed from are described somewhat differently to the decisions described in the application for an order of review.
By an order made in the Federal Court on 16 December, 2003, but not entered until 2 August, 2004, the outstanding proceedings were transferred to this court.
The matter came before me on 30 August, 2004 for its first court date in this court. On that occasion, counsel appeared for the respondent and sought to clarify the basis of the applicant’s application to the court. The notice of appeal had not been served upon the respondent. The following exchanges took place:
MR SOBCZUK: Yes. Oh, well, it was sent on the weekend after my discussion with the other party last week, Friday - so the previous day. And that's what I prepared. The affidavits got an error there on the date, but that's the evidence I presented. And the evidence, in summary, is; the Commissioner is trying to change, the jurisdictions and other, which they would like to hear this process. And the original advice that I received from - legal advice that I received from Legal Aid - it is that it is not an objection of technicality on a decision by the Administrative Appeals Tribunal, it is an application under the Administration Decisions Judicial Review Act.
And the reason is because the decision itself, as in my evidence on the affidavit, ignores material evidence of fraud, presented as evidence before the AAT, including fabricated pay roll records from the negotiations between the auditor of the Australian Taxation Office and the ex-secretary officers of the Carnarvon Aboriginal Medical Service Corporations, which was controlled by the Western Australian Police, who were charged, lately, under - - -
HIS HONOUR: Just hold it. Just hold on. Can you identify for me, the legislative basis for your application to this Court. What act are you applying under?
…
MR SOBCZUK: The Administrative Decisions - - -
HIS HONOUR: So the ADJR Act, right?
MR SOBCZUK: - - - Judicial Review Act.
HIS HONOUR: Right.
MR SOBCZUK: It's not an objections on technicality by the decisions of the AAT. It is an application for review under the Administrative Decisions Judicial Review Act.
HIS HONOUR: Right. I think I understand that. All right. Now, just have a seat for a moment. Ms Lynch what do you say about that - if that's the basis of this application, what do you say, if anything about that?
During the course of the mention, it became apparent that the notice of appeal filed by the applicant had not been served upon the respondent. The following exchange took place:
MS LYNCH: Your Honour, we don't have that document.
HIS HONOUR: There's a document - a notice of appeal filed 19 July. You haven't got that one?
MS LYNCH: No. No, your Honour. Is that purported to be an amended application?
HIS HONOUR: Well, I'm not sure.
MS LYNCH: Mr Sobczuk, could I have a copy of that?
MR SOBCZUK: No, I don't have a copy here. I don't have a copy. In my dealing with the Registrar, they told me to fill the form. I filled it and I said in that forms, as per my previous application - and then the Registrar said that that wasn't good enough. But my applications is as my original applications. And then the Registrar sent a letter saying that that application wasn't good enough because I state as my previous applications to a different form. And that's what I'm advised on the grounds what this matter should go ahead with.
The issue of the nature of the application was raised again in the course of the hearing and the following exchange took place:
HIS HONOUR: All right. Okay. Thanks Mr Sobczuk. Ms Lynch, what is the real nature of this application?
MS LYNCH: Well, your Honour, that's - I suppose what we need to ascertain is whether it's an appeal from the AAT, in which case, we can deal with it according to the rules on that part of it, or whether it is, in fact, an application under the ADJR Act and we'll deal with it on that basis. We need Mr Sobczuk to say which way he wants to go with it and then we'll - - -
HIS HONOUR: I think he's - and I'll ask him again, but I think he says it's the ADJR way, but - - -
MR SOBCZUK: That's what I was advised, originally, and I would like to proceed with - - -
HIS HONOUR: Well, I don't care - - - hang on - hold on - hold on – just understand this, I don't want to know what you were advised. I don't care what you were advised. I want you tell me, now, what your case is. Is it a case under the ADJR Act or is - or is it an appeal?
MR SOBCZUK: A case under ADJR for ignoring the self education and all the material other evidence.
HIS HONOUR: All right. Just bear with me one minute. Now, on 16 December last year, Kiefel J in the Federal Court made an order for you to have leave to amend your application. Have you amended your application?
MR SOBCZUK: I have not amended my application. I have sent the respective forms attached as per my previous applications. And I filed a few times - - -
HIS HONOUR: So that's the notice of appeal that you filed on 19 July, is it?
MR SOBCZUK: There was a few filed because what happens - I have been keep file and it wasn't accepted. And in the way I'm filing is saying is that my - because to have the right form, I kept filing and saying as per my original applications.
HIS HONOUR: So you haven't amended anything. You just keep saying it is as per the original.
MR SOBCZUK: As per my previous applications, yes.
HIS HONOUR: All right.
MR SOBCZUK: Because that's in the way I would like to go because I was advised that - sorry, as I would like to go.
By the conclusion of the first court date, it was sufficiently clear that the notice of appeal had not been served and that the applicant had no interest in pursuing it. He clearly stated that his application was under the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”). Some time was taken to have him elaborate upon the grounds he wished to pursue.
I set the application down for hearing on 15 November, 2004 and made directions for the filing of certain outlines of argument.
The application next came before me on 25 October, 2004. That date was fixed for the return of subpoenas (if any). On that occasion, soon after the commencement of the hearing, the applicant stated his position that he was applying under the ADJR Act in the following way:
HIS HONOUR: Well, see, there's the problem, isn't it? If these documents go to showing that the amended assessments issued by the ATO all that long time ago were wrong because they got the calculations wrong, or they didn't take things into account that they should have taken into account, and all those sorts of things, that's not something I can correct on this application before me, is it?
MR SOBCZUK: Yes, you can correct it, your Honour, because my application is under the Administrative Review Act, and you can - may put the assessments - the wrongful assessments - aside, as the Member has failed to do so. And if you look at ‑ ‑ ‑
Notwithstanding that statement and what had transpired on 30 August, 2004, the respondent remained confused about the nature of the application he was facing. The anxiety was raised in the following way:
MS LYNCH: Yes, your Honour. I received a fax from Mr Sobczuk over the weekend. At the last occasion we were all before you, I thought we had prioritised the way Mr Sobczuk was proceeding with his appeal, and his latest fax, which I think probably was also faxed to the Registrar, now indicates that he wants to proceed by way of a judicial review application.
MR SOBCZUK: I object, your Honour. That was not the case, your Honour.
MS LYNCH: I just wanted to mention that initially, because obviously that will then affect the way the Commissioner responds to Mr Sobczuk's application. A direction was made on the last occasion - and I have received a copy; I think, Mr Sobczuk as well - of the notice of appeal filed on 19 July this year. And, as I said, my understanding was that he was proceeding on an appeal from the decision of the AAT rather than a judicial review application. But putting that to one side, your Honour ‑ ‑ ‑
HIS HONOUR: Sorry, just before you go on, have you got one of these now? [Referring to a book of documents filed by the applicant]
MS LYNCH: The book of documents? Yes.
MR SOBCZUK: Sorry, one thing, your Honour. She hasn't got it because this one hasn't been filed yet, according to the Registrar.
HIS HONOUR: I see.
MR SOBCZUK: So once they have filed, I can issue it to the other party.
HIS HONOUR: Well, you're going to get one of these.
MR SOBCZUK: But they are due by 5 o'clock, your Honour.
HIS HONOUR: Okay, thanks. It sets out Mr Sobczuk's outline of submissions. Now, I understand that it creates a difficulty of sorts for your side of the record, Ms Lynch, to - really it is probably desirable that you know once and for all what it is that you are responding to; but I think if you respond to this, that you can't go too far wrong. That's what I've got.
MS LYNCH: Yes, your Honour.
HIS HONOUR: That's Mr Sobczuk's case. This is your case now, isn't it?
MR SOBCZUK: That's correct, your Honour. You asked me to submit it last time ‑ ‑ ‑
HIS HONOUR: That's all right. And thanks for doing it. Thanks for taking the time to put together a document that summarises your case. If you answer that, then we should all be on the same wave length.
MS LYNCH: Yes, your Honour, but I just ‑ ‑ ‑
HIS HONOUR: And things flow from that. If one goes through this, it's really approached by him as a judicial review application, then there might be submissions that flow from that for your side of the record ‑ ‑ ‑
MS LYNCH: Yes, your Honour, and I note they're the same as last time.
HIS HONOUR: Yes, that's right.
MS LYNCH: And I gave Mr Sobczuk a copy of those authorities.
HIS HONOUR: I think you've done your best in that respect.
Finally, towards the conclusion of the mention, the applicant again reiterated that his application was for an order for review and not an appeal in the following way:
HIS HONOUR: I'm not going to give you leave to file that. You have told me, and Ms Lynch now understands, and I understand, that this is your case. [referring to the outline of submissions prepared by the applicant]
MR SOBCZUK: That's correct, yes, your Honour.
HIS HONOUR: So you stand or fall on this document?
MR SOBCZUK: That's correct, yes. And that's under the Administrative Review Act, your Honour.
HIS HONOUR: Yes, right. We will deal with it as we find it, Mr Sobczuk. But if it turns out that, really, it's an appeal rather than an ADJR application, then things might fly from that and vice versa. So we will just take it as we find that document, and you're content for us to do that?
MR SOBCZUK: Yes. …
On 22 October, 2004 the applicant filed an outline of submissions as directed by me on 30 August, 2004. At the commencement of the outline the following passages appear:
1. This application is made for review by the Federal Court under the Judiciary Review Act, as per limited legal advise received by the applicant by a Community Lawyer from Legal Aid, when Legal Aid is not able to help as it is too complex and refers the matter to the Registrar of the Federal Court and advises the applicant to request the Judge for assistance under the Pro-bonus Lawyer Scheme.
2. After this application was made, ATO, constantly and all the time and when I also when I was medically unfit, through the Australian Government Solicitors have been trying to change this application, advising me that the Appeal process and not the review process it is better one for me to deal with.
3. 1 refuse to follow their advise and I cannot trust the advise to ATO and the Australian Government Solicitors as for many years they:
… (errors in original)
On 8 November, 2004 the respondent filed an application pursuant to the Federal Magistrates Court Rules 2001 (“FMCR”) 13.10 to have the applicant’s application dismissed as “misconceived and an abuse of process of the Court”. The respondent’s application raises issues that are common to the applicant’s application and I will deal with them together.
Discussion
I am satisfied that the application prosecuted before me is an application under the ADJR Act and not an appeal under s. 44 of the Administrative Appeals Tribunal Act1975 (“AAT Act”). The applicant has consistently disavowed any notion that his application should be treated as an appeal under s.44 of the AAT Act.
The respondent says that I should dismiss the application because:
a)the applicant claims relief that I am not empowered to give; and
b)the application is an abuse of process.
As to the second ground, the respondent points me to s.10(2)(b)(ii) of the ADJR Act. It is in the following terms
“Notwithstanding sub-section (1)
(a)…
(b) the Federal Court or the Federal Magistrates Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision for the reason -
(i) that the applicant has sought a review by the court, or by another court, of that decision, conduct or failure otherwise than under this Act: or
(ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.”
The respondent submits that the challenged decision is a final decision which could properly be the subject of an appeal pursuant to s.44 of the AAT Act. But does the s.44 procedure provide the applicant with adequate provision to seek a review by the court of the challenged decision? Put another way, are the grounds of review available under the ADJR Act more expansive than those provided in the AAT Act so that it could not be said that the AAT Act makes adequate provision for review of the challenged decision?
In Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 Davies J held that an application brought under the ADJR Act to review a decision of the Tribunal was misconceived and s.44 of the AAT Act was the appropriate avenue of appeal. Relevantly at p 484, his Honour said:
“The words question of law’ in s.44 encompass matters concerning not only the interpretation of a Federal enactment or the enunciation of the principle of the common law or equity, but also the breach of any duty which the Tribunal was bound by law to perform and the failure of which to perform may lead to the setting aside of the decision. The words ‘question of law’ encompass grounds enunciated in s 5 of the ADJR Act such as the failure to take into account a material consideration, the taking into account of an irrelevant consideration, the making of a decision that no reasonable decision maker would have made, the exercise of a decision making power for a purpose other than for the purpose for which the power was conferred and the failure to provide natural justice”.
Similar conclusions have been reached in other cases, conveniently collected in Duncan v Hotop [2004] FCA 274 where R D Nicholson J said:
10. Generally speaking the words ‘question of law’ in s 44 of the AAT Act encompass the grounds available under s 5 of the ADJR Act. This appears from the authorities referred to by his Honour: Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 484, Percerep v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 483 at 495-496, and Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 12.
It is also clear that an application under the ADJR Act carries with it no greater right to lead evidence of the hearing of the application than does an appeal under the AAT Act. Again, that issue was considered in Duncan v Hotop in the following terms at paragraph 10:
It is also the case that the applicant is incorrect in any view that on an ADJR application he would have a greater entitlement to adduce evidence not before the Tribunal than he would have had in a s 44 AAT Act application. I accept that the clear legislative purpose behind s 10(2)(b)(ii) of the ADJR Act is to avoid ‘forum shopping’ and to avoid a multiplicity of proceedings. There is, therefore, no basis for the applicant’s central submission that on a s 44 AAT Act application the Federal Court would not have jurisdiction to allow the application on any of the grounds of review sought to be agitated by the applicant, providing the Court was satisfied one or more of the grounds was established.
Conclusion
I am satisfied that this application is an abuse of process. The issue raised by the respondent has been raised with the applicant when the proceedings were before the Federal Court and when the matter was first before this court. The respondent has sought to have the applicant pursue an appeal under the AAT Act, but he has refused. He has made a conscious decision to pursue his ADJR Act application notwithstanding that the difficulties pursuing that application have been brought to his attention.
Section 10(2)(b)(ii) of the ADJR Act vests a discretion in the court to refuse to grant the application. In the circumstances set out above, there is no reason, in my view, that points away from exercising the discretion so vested. Adequate provision is made by s.44 of the AAT Act for the review by the court of the decision sought to be challenged.
As the applicant has disavowed any reliance upon the notice of appeal filed by him, that appeal must also be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Deputy Associate: E Crutchfield
Date: 12 January 2006
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