SRBP and Tax Practitioners Board

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Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2014/5366
General Administrative Division                )

Re:            SRBP

Applicant

And:           Tax Practitioners Board

Respondent

DIRECTION

TRIBUNAL:              F D O'Loughlin, Senior Member

DATE:   7 May 2015

PLACE:                    Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1.Para 9(l) – insert the word not in the second sentence of the quote between would and be appropriate;

2.After the quoted text in para 9(l) replace current text with:

and by its cover email asked that the request be brought to my attention and to the attention of the Tribunal member responsible for the 6 March 2015 letter to the Respondent, as subsequently explained, in the hope and expectation that this matter would be dealt with by a simple reallocation of responsibilities.

3.Replace the first line of para 20 with:

Omitting citations, her Honour said:

............................................................

Senior Member

SRBP and Tax Practitioners Board (Taxation) [2015] AATA 292 (24 April 2015)

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2014/5366

Re

SRBP

APPLICANT

And

Tax Practitioners Board

RESPONDENT

DECISION

Tribunal

F D O'Loughlin, Senior Member

Date

Date of written reasons

24 April 2015

1 May 2015

Place

Melbourne

For the reasons given orally at the hearing of this matter, and to be set out in more detail in writing, the Tribunal refuses the application for its recusal.

.............................................................

Senior Member

RECUSAL - apprehended bias - practising barrister and part time Tribunal member constituted as the Tribunal holding a brief to provide advice for an unrelated client of the Applicants solicitors - Tribunal member initiated steps that led to provision of pro bono representation of Applicant - whether sufficient connection to raise perception of lack of independence and impartiality.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), s 21A

Cases

BQL & Commissioner of Taxation [2013] AATA 423

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

SZTKN v Minister for Immigration and Border Protection [2015] FCA 212

Fingleton v Christian Ivanoff Pty Ltd (1976) 14 S.SA.S.R.530

Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd & Qantas Airlines Ltd (1996) 65 FCR 215

Picos v Australian Federal Police [2015] FCA 118

Taylor and Anor v Lawrence and Anor [2003] QB528 (CA) at 548

Australian Securities and Investments Commission v Franklin (liquidator), in the matter of Walton Constructions Pty Ltd [2014] FCAFC 85

Ego Pharmaceuticals Pty Ltd and Minister for health and Ageing [2012] AATA 113

Other material

Australian Bar Association, Proposed Legal Profession Conduct Rules: Barristers, 24 November 2014.

The Victorian Bar Incorporated, Practice Rules: Rules of Conduct and Compulsory Continuing Professional Development Rules, Effective 22 September 2009.

Róisín Annesley Q.C., Good Conduct Guide, Professional Standards for Victorian Barristers

REASONS FOR DECISION

1 May 2015

  1. In the substantive review application, the Applicant seeks the Tribunal’s review of the Respondent’s decision to cancel her Tax Agent registration.

  2. By the Respondent’s solicitors’ letter of 16 April 2015 to…

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Details
Case
[2015] AATA 292
Decision Date

CaseChat Overview and Summary

In the case of SRBP v Tax Practitioners Board, the court examined a request for recusal and a request under section 21A of the Administrative Appeals Tribunal Act 1975, both grounded in the apprehension of bias. The Respondent, Tax Practitioners Board, accepted that there was no actual bias but contended that a fair-minded lay observer might apprehend bias due to the Tribunal member's professional connections and involvement in arranging pro bono legal assistance for the Applicant. The Tribunal member, who was also a part-time member and a practising barrister, had been briefed by the Applicant's solicitors in an unrelated matter. The central legal issues were whether the Tribunal member's professional associations and the act of arranging pro bono assistance constituted grounds for apprehended bias and warranted recusal.

The court thoroughly considered the submissions and found that the Tribunal member's part-time status, professional expertise, and the nature of the connections with the Applicant's solicitors did not create a reasonable apprehension of bias. The court emphasised that a fair-minded lay observer would understand the context of a part-time tribunal member's professional engagements and the limited scope of overlap between the member's private practice and the matters before the tribunal. Furthermore, the court held that the act of arranging pro bono assistance, followed by the member's disengagement from the process, did not support a finding of bias. The court concluded that the Tribunal member could remain constituted without contravening the principles of natural justice.

In summary, the court dismissed both the recusal request and the section 21A request. The Tribunal member was found to be able to continue to preside over the matter without any apprehension of bias. The court's decision underscored the importance of context and the understanding of professional relationships in assessing potential bias in administrative tribunals.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Both the recusal request and the s 21A request are made on the footing of apprehended bias. The Respondent expressly accepts that there is no actual bias and that if I continued to be the Tribunal constituted in this matter that I would bring an impartial and unprejudiced mind to bear on the issues. The Respondent also confirmed it had a clear preference for the Applicant to be represented in this matter and has praised the two barristers and the Applicant’s solicitors for providing their assistance.The facts The present task requires analysis of what was objectively observable by the party complaining. Matters such as my knowledge, and/or absence thereof, of any steps taken by the Tribunal and correspondence sent from the Tribunal to the Respondent after my dealings with the TBA ended, my motivation for contacting the TBA, and the reasons for the manner in which that contact was made, are not relevant. The facts can be summarised as follows.(a)The substantive application has been listed for hearing three times: on 17 December 2014, 4 February 2015 and 4 May 2015. Attempts were made on the first two listing dates to begin a hearing. On each occasion it was apparent very early that a hearing was premature. (b)On the 4 February 2015 hearing date, proceeding with a hearing would have been difficult for the Applicant, the Respondent and the Tribunal. It would also have been unfair for the Respondent given the late supply of voluminous material on which the Applicant was to rely. The hearing was vacated.(c)With the support of the Respondent, on 4 February 2015 prescriptive directions were given for further steps to be taken before hearing the substantive application. Redacted to remove names, those directions were as follows:.....4.On or before 30 March 2015, the Applicant provide to the Tribunal and a copy to the Respondent.a. a statement of the evidence she proposes to give including:i.any rebuttal of contentions and allegations concerning communications with [NAME REDACTED] regarding her refund entitlements from the Australian Taxation Office (ATO) referred to in summaries of evidence proposed to be led by the Respondent that have been filed with the Tribunal;ii.any rebuttal of contentions and allegations concerning instructions to staff as to how to respond to clients seeking advice regarding refunds by the ATO referred to in summaries of evidence proposed to be led by the Respondent that have been filed with the Tribunal;iii.to the extent she is able, an explanation of the reasons for delays in forwarding refunds made by the ATO to:(A)[NAME REDACTED];(B)[NAME REDACTED];(C)[NAME REDACTED];(D)[NAME REDACTED] and(E)the 72 other clients listed at pages 77 and 78 of the documents filed with the Tribunal by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975;iv.any rebuttal of contentions and allegations concerning supervision of staff referred to in summaries of evidence proposed to be led by the respondent that have been filed with the Tribunal;v.any rebuttal of any other contentions and allegations referred to in summaries of evidence proposed to be led by the Respondent that have been filed with the Tribunal; andvi.any and all explanations of mitigating circumstances which the Applicant considers should be taken into account by the Tribunal;b. all documents on which the Applicant proposes to rely that have not previously been filed with the Tribunal and a listing of other documents on which she proposes to rely that have already been filed with the Tribunal; and c. a statement of facts issues and contentions about the appropriate conclusion the Tribunal should reach with reasons as to why it should reach those conclusions.5.To the extent possible, the statement referred to in 4(a) above is to be cross referenced to documents that support or corroborate the assertions in the statement.6.On or before 20 April 2015, the Respondent provide to the Tribunal and a copy to the Applicant a further statement of facts issues and contentions.7.The matter be listed for hearing in the week beginning 4 May 2015.(d)Also on 4 February 2015, I contacted an office bearer of the TBA (its Secretary) to ascertain whether it had, from among its members, a barrister who might assist the Applicant in this matter on a pro bono basis. (e)Later on 4 February 2015, I was advised by the Secretary of the TBA (in a communication that was copied to the TBA President) that:... we have received a positive response to the call out for pro bono assistance. We will be in touch again once we close the expression of interest in the next day or so.(f)My response to the Secretary and copied to the President on the same day was:On behalf of the Tribunal, thanks for your efforts and the time within which you have responded. From this point forward I should not be involved.Assuming there is a volunteer, could you, or an appropriate person get in touch with [NAME REDACTED] and [NAME REDACTED] at the Tribunal to arrange for the offer of assistance to be made to the applicant. They will get in touch with the Applicant and have her contact the volunteer and provide the current directions and other documents.(g)Also on 4 February 2015, the two Tribunal staff members whose names are redacted above were asked to carry the matter of potential pro bono assistance further.(h)No contact was made by the Tribunal with the Respondent concerning the initiative to obtain pro bono assistance until 6 March 2015.(i)On 6 March 2015, and at the instigation of a Tribunal member not constituted as the Tribunal in this matter, the Acting District Registrar of the Tribunal wrote to the Respondent advising that:....It would appear from the file that, on or before 4 February 2015 Senior Member O’Loughlin approached Ms Angela Lee and, perhaps, Ms Jennifer Batrouney QC, asking the Tax Bar Association to ascertain whether any of its members was prepared to offer pro bono assistance to the applicant SRBP. On 4 February 2015 Ms Lee advised Senior Member O’Loughlin by email that a positive response had been received. After thanking her, he asked Ms Lee to give the barrister’s details to me and another Tribunal staff member, [NAME REDACTED], who would pass them to SRBP. Senior Member O’Loughlin also advised that, from that point forward, he should not be involved. He forwarded the emails to [NAME REDACTED] and me for our attention.On 6 February 2014 [sic] Ms Claire Nicholson advised [NAME REDACTED] and me that she and Mr Andrew Broadfoot had agreed to provide pro bono acceptance. [sic] She asked that they be permitted to review the file before approaching a firm of solicitors to engage on a pro bono basis. Unless the Tribunal had another suggestion, they proposed to approach one or other of Allens, King & Wood, Mallesons and Arnold Bloch Leibler. I did not have any other suggestion.I wrote to SRBP on 6 February 2015 advising her of the offer of assistance. Contact between her and Ms Nicholson occurred later in the month and Arnold Bloch Leibler gave notice of their acting on 25 February 2015.(j)The Acting District Registrar’s 6 March 2015 letter indicated that the Tribunal (meaning me) and its staff and other members had not played any part in the selection of the particular persons who have offered pro bono assistance. (k)On 15 April 2015 I convened a directions hearing whereat I advised the Respondent that:(i)I was a part time member of the Tribunal;(ii)I was ordinarily a practising barrister in full time practise as such;(iii)as part of that practise, I had for some time been briefed by the Applicant’s solicitors as a junior counsel, with a senior counsel, in an independent matter that was ongoing and as part of that brief had instructions from the partner of that firm supervising the present matter; and(iv)the Respondent should be aware of that fact.(l)On 16 April 2015 the Respondent’s solicitors wrote to the Tribunal indicating that I should not continue to be constituted as the Tribunal in the following terms:The Respondent’s view is that in all the circumstances it would be prudent for this application for review to be re-allocated to another Tribunal member for determination. The Respondent respectfully submits that it would be appropriate, at least in the sense of a conflict of interest adversely colouring the perceived impartiality of the Tribunal, for the presiding Tribunal member to be acting on instructions from the Applicant’s solicitors in a continuing proceeding at the same time as adjudicating on a matter in which the solicitors are acting the for Applicant.and by its cover email asked that the request be brought to my attention and to the attention of the Tribunal member responsible for the 6 March 2015 letter to the Respondent, in the hope and expectation that this matter would be dealt with by a simple reallocation of responsibilities.(m)A hearing was convened on 24 April 2015 to allow parties to address the recusal request. (n)At the 24 April 2015 hearing the Respondent’s advocate, Mr Brown, indicated that the request was made pursuant to s 21A of the Act. As noted above, s 21A of the Act is not the only matter that needs to be considered.(o)After hearing the parties, on 24 April 2015 I decided that I would not recuse myself for the reasons given briefly in the following terms:[5]… My ruling in this matter is that I’m not going to recuse myself. I think that the test is that a fair-minded lay observer who is informed and knowledgeable, requires a fair-minded lay observer to be informed of all of the facts and have knowledge of all of the circumstances. I don’t think that such a person ought have a reasonable apprehension of bias. The test requires an understanding of context and particularly the context of a part-time tribunal member as opposed to a full-time judicial officer with tenure. A part-time tribunal member is appointed for reasons of particular expertise and is assigned to particular divisions of the tribunal because of that expertise. Where a practitioner practices in a field with a particular expertise, the usual course of events is that they exclude other areas of practice from their areas of activity. Once areas of activity are narrowed to fields of particular expertise, the range of professional associations and connections is also narrowed to others that practice in those fields. It is inevitable that a tribunal member appointed with tax expertise it would be inevitable that there would be some ongoing connections from time to time with firms that specialise in particular areas of the law, such as tax, such as the practice of Arnold Bloch Leibler. Having regard to what Downes J said in Ego Pharmaceuticals & the Minister for Health and Ageing [2012] AATA 113, and particularly at paragraph 36, I am fortified in the view that it is necessary for the fair-minded lay observer to be assumed to be informed and knowledgeable as to those sorts of matters, and I am satisfied that such a person ought not apprehend bias in dealing with the outcome in the present matter. As to the conjunction of arranging the pro bono assistance, I don’t make the connection the Respondent makes. The fair-minded reasonable observer ought not apprehend bias in circumstances where, after an initial conversation with an office holder of a professional body, there is a communication back to that office holder to the effect that the tribunal member should have no further part in organising the professional assistance for the applicant in this matter. I expect that the fair-minded lay observer informed of that fact would take some comfort in the separation of the Tribunal from the organisation of the legal representation. For those reasons the Tribunal ruling is that I will not recuse myself in this matter. …If written reasons are prepared, they would be a little more expansive than what I’ve just articulated.[5]Taken from the transcript with minor editing to convey the reasons more accurately.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The substance of what Mr Broadfoot and Ms Nicholson offered to the Tribunal, if accepted, would, having regard to what was said in Picos and Ego Pharmaceuticals compel a conclusion that I must decline to recuse myself. Consideration of the Respondent’s submissions Being briefed by the Applicant’s solicitors in an unrelated contextual setting and for an unrelated client, it is difficult to perceive how there could be a conflict of interest arise in continuing to be the Tribunal constituted in the present matter. The legal and factual matters arising have no overlap and the parties to the present matter and the client for whom the Applicant’s solicitors have briefed me are not related or otherwise connected. The fact that I might be paid in respect of the advice given in respect of the client for whom the Applicant’s solicitors have briefed me is not to the point. As noted by Mr Broadfoot and Ms Nicholson, not all financial associations are sufficient to warrant a legitimate apprehension of bias. Equating the circumstances of the employment relationships referred to in Fingleton with the relationship of a practising barrister to an instructing solicitor shows a misunderstanding of some fundamental features of the latter relationship, for example the central focus of the client, and protection of the clients’ interests ahead of solicitors’ interests, in the tripartite the relationship between barristers, solicitors and their clients, and the requirement to practise independently and observe the cab rank principle. Rule 114 of the proposed Australian Bar Rules[26] and rule 73 of the Victorian Bar Rules,[27] which oblige a barrister to inform his or her client of potential claims against his or her instructing solicitors, are examples of the priority afforded to the client’s interests over instructing solicitors’ interests. Barristers’ obligations to practise independently of others and abide by the cab rank rule complement the requirement that a barrister must advance and protect a client’s interests no matter how unpopular the client or the client’s activities might be.[28] These features of professional practise lead to barristers with close personal and/or professional associations often acting on opposite sides of a dispute as was observed by Merkel J in Aussie Airlines[29] as extracted above. These are examples of incidents of a barrister’s relationship with instructing solicitors that set that relationship apart from employment relationships.[26]Australian Bar Association, Proposed Legal Profession Conduct Rules: Barristers, 24 November 2014.[27]The Victorian Bar Incorporated, Practice Rules: Rules of Conduct and Compulsory Continuing Professional Development Rules, Effective 22 September 2009.[28]Róisín Annesley Q.C., Good Conduct Guide, Professional Standards for Victorian Barristers, [4.71].[29]Aussie Airlines (1996) 65 FCR 215 at 230C to G Merkel J. Contrary to the submissions made on behalf of the Respondent, a barrister is not retained to act on behalf of her or his instructing solicitor; rather it is the client on whose behalf the barrister acts.