Tax Practitioners Board v Buckland (No 2) - [2023] FCA 191

FEDERAL COURT OF AUSTRALIA
Tax Practitioners Board v Buckland (No 2) [2023] FCA 191

File number(s): NTD 18 of 2022

Judgment of: HESPE J

Date of judgment: 21 February 2023

Date of publication of reasons: 8 March 2023

Catchwords:
HIGH COURT AND FEDERAL COURT – jurisdiction of the Federal Court – whether Court has jurisdiction

PRACTICE AND PROCEDURE – application for service on a company in a foreign country – application for substituted service under r 10.24 and / or r 10.49 of the Federal Court Rules 2011 (Cth) as amended from 13 January 2023

Legislation:
Federal Court of Australia Act 1976 (Cth) s 19

Federal Court Rules 2011 (Cth) rr 1.34, 8.11, 8.12, 9.05, 10.24, 10.45, 10.49

Judiciary Act 1903 (Cth) ss 39B, 78B

Tax Agent Services Act 2009 (Cth)

Cases cited:
Austral Pacific Group Ltd (In liq) v Airservices Australia [2000] HCA 39; (2000) 203 CLR 136

Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [1999] FCA 1151; (1999) 95 FCR 292

Australian Securities and Investment Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559

Chan v Harris (No 3) [2011] FCA 341

Deputy Commissioner of Taxation v State Bank (NSW) (1992) 174 CLR 219

Tax Practitioners Board v Buckland [2022] FCA 1376

Division: General Division

Registry: Northern Territory

National Practice Area: Taxation

Number of paragraphs: 29

Date of hearing: 21 February 2023

Counsel for the Applicant: Mr M J Follett

Solicitor for the Applicant: MinterEllison

Counsel for the Respondent: The respondent appeared in person

ORDERS

NTD 18 of 2022

BETWEEN:
TAX PRACTITIONERS BOARD

Applicant

AND:
ANTHONY DEAN BUCKLAND

Respondent

ORDER MADE BY:

HESPE J

DATE OF ORDER:

21 FEBRUARY 2023

THE COURT ORDERS THAT:
1.Pursuant to r 9.05 of the Federal Court Rules 2011 (Cth), Apat na Seasons Pilipinas Corporation (the Company) be joined as a respondent to this proceeding.
2.Pursuant to r 8.21 of the Rules, the applicant have leave to amend the originating application dated 14 October 2022 in substantially the manner set out in the document marked “PAL-7” and annexed to the affidavit of Patrick Anthony Long affirmed on 24 January 2023 and filed in these proceedings (Amended Originating Application).
3.The applicant file (and serve on the respondent) the Amended Originating Application.
4.Pursuant to r 10.44 of the Rules, the applicant have leave to serve on the Company in the Philippines the following documents (Relevant Documents):
(a)the affidavit of Mingma Sherpa affirmed 14 October 2022;
(b)the affidavit of Melissa Guise affirmed 11 March 2022;
(c)the affidavits of Aaron Cuerden affirmed 11 April 2022 and 5 October 2022;
(d)the affidavit of Jennifer Ledingham affirmed 13 April 2022;
(e)the affidavit of Alison Hawkins affirmed 27 April 2022;
(f)the affidavit of Tom Cavallaro affirmed 26 May 2022;
(g)the affidavits of Patrick Anthony Long affirmed 14 October 2022, 24 January 2023 and 31 January 2023; and
(h)a notice in accordance with Form 26A to the Rules.

5.Pursuant to r 1.34 of the Rules, any…

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: [2023] FCA 191
Decision Date: 21 February 2023

CaseChat Overview and Summary

The Tax Practitioners Board sought to join Apat na Seasons Pilipinas Corporation as a respondent in proceedings against Mr Buckland. The Board also sought leave to amend its originating application and to serve certain documents on the company in the Philippines, where it is incorporated and operates, by sending an electronic link to download and access the documents by email or as email attachments. The Board sought leave to do this without first having to make unsuccessful attempts to serve the documents personally on the company or to leave them at its registered office. Mr Buckland opposed the application. The central issue before the Court was whether it had jurisdiction to order service of the documents in the manner sought by the Board. The Board argued that it did, relying on r 10.24(a) and/or r 10.49(a) of the Federal Court Rules 2011 (Cth). Those rules provide that where a defendant is a company incorporated outside Australia, the Court may order that documents filed in the proceeding be served on the defendant by sending an electronic link to download and access the documents by email, or as email attachments, to a specified person if the Court is satisfied that this is a reasonable method of service having regard to all the circumstances, including the company’s usual place of business and its practice of receiving and responding to communications by email. The Court held that it did have jurisdiction to make the orders sought by the Board. The Court accepted that the company’s usual place of business was in the Philippines, where it operated and where its directors and officers were based. The Court also accepted that it was reasonable to serve the company by sending an electronic link to download and access the documents by email or as email attachments, to specified email addresses, having regard to the company’s practice of receiving and responding to communications by email and the fact that this method of service was likely to be quicker and cheaper than personal service or leaving the documents at the company’s registered office in Australia. The Court noted that the company had not identified any prejudice that would result from this method of service. The Court also held that it was not required to make unsuccessful attempts to serve the documents personally on the company or to leave them at its registered office before ordering service by email. The Court noted that the company had not demonstrated that it was impracticable to make such attempts. The Court therefore made the orders sought by the Board, joining Apat na Seasons Pilipinas Corporation as a respondent, allowing it to amend its originating application, authorising service of the documents on the company in the manner sought, and dispensing with the requirement to make unsuccessful attempts at service. The Court listed the proceeding for a case management hearing and allowed the parties to attend by web conference. It also reserved costs and granted liberty to apply.

Orders

Orders of the court

1. Pursuant to r 9.05 of the Federal Court Rules 2011 (Cth), Apat na Seasons Pilipinas Corporation (the Company) be joined as a respondent to this proceeding.

2. Pursuant to r 8.21 of the Rules, the applicant have leave to amend the originating application dated 14 October 2022 in substantially the manner set out in the document marked “PAL-7” and annexed to the affidavit of Patrick Anthony Long affirmed on 24 January 2023 and filed in these proceedings (Amended Originating Application).

3. The applicant file (and serve on the respondent) the Amended Originating Application.

4. Pursuant to r 10.44 of the Rules, the applicant have leave to serve on the Company in the Philippines the following documents (Relevant Documents):

(a) the affidavit of Mingma Sherpa affirmed 14 October 2022;

(b) the affidavit of Melissa Guise affirmed 11 March 2022;

(d) the affidavit of Jennifer Ledingham affirmed 13 April 2022;

(e) the affidavit of Alison Hawkins affirmed 27 April 2022;

(f) the affidavit of Tom Cavallaro affirmed 26 May 2022;

(g) the affidavits of Patrick Anthony Long affirmed 14 October 2022, 24 January 2023 and 31 January 2023; and

(h) a notice in accordance with Form 26A to the Rules.

5. Pursuant to r 1.34 of the Rules, any requirement under r 10.49 of the Rules that there be unsuccessful attempts at service of any documents filed in these proceedings, including the Amended Originating Application and the Relevant Documents, be dispensed with.

6. Pursuant to r 10.24(a) or alternatively r 10.49(a) of the Rules, the applicant may serve any documents filed in these proceedings, including the Amended Originating Application and the Relevant Documents, on the Company by:

(a) sending an electronic link to download and access any documents filed in these proceedings by email, addressed to the Proper Officer of the Company, at:

(i) apatnaseasons@gmail.com;

(ii) apatnaseasons@protonmail.com;

(iii) apat_na_seasons@mailfence.com; and

(iv) jmv@vcolaw.com; or

(b) sending a copy of the documents in PDF form as attachments to one or more emails addressed to the “Proper Officer” of the Company at the email addresses specified in subparagraph (a).

7. The proceeding be listed for a case management hearing on a date not before 8 May 2023.

8. The parties have leave to attend the case management hearing referred to in paragraph 7 of these orders by way of web conference.

9. There be liberty to apply.

10. Costs be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.

File number(s):	NTD 18 of 2022
Judgment of:	HESPE J
Date of judgment:	21 February 2023
Date of publication of reasons:	8 March 2023
Catchwords:	HIGH COURT AND FEDERAL COURT – jurisdiction of the Federal Court – whether Court has jurisdiction PRACTICE AND PROCEDURE – application for service on a company in a foreign country – application for substituted service under r 10.24 and / or r 10.49 of the Federal Court Rules 2011 (Cth) as amended from 13 January 2023
Legislation:	Federal Court of Australia Act 1976 (Cth) s 19 Federal Court Rules 2011 (Cth) rr 1.34, 8.11, 8.12, 9.05, 10.24, 10.45, 10.49 Judiciary Act 1903 (Cth) ss 39B, 78B Tax Agent Services Act 2009 (Cth)
Cases cited:	Austral Pacific Group Ltd (In liq) v Airservices Australia [2000] HCA 39; (2000) 203 CLR 136 Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [1999] FCA 1151; (1999) 95 FCR 292 Australian Securities and Investment Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559 Chan v Harris (No 3) [2011] FCA 341 Deputy Commissioner of Taxation v State Bank (NSW) (1992) 174 CLR 219 Tax Practitioners Board v Buckland [2022] FCA 1376
Division:	General Division
Registry:	Northern Territory
National Practice Area:	Taxation
Number of paragraphs:	29
Date of hearing:	21 February 2023
Counsel for the Applicant:	Mr M J Follett
Solicitor for the Applicant:	MinterEllison
Counsel for the Respondent:	The respondent appeared in person

ORDER MADE BY:	HESPE J
DATE OF ORDER:	21 FEBRUARY 2023