Thorpe v Commissioner of Taxation

[2012] FCA 997

FEDERAL COURT OF AUSTRALIA

Thorpe v Commissioner of Taxation [2012] FCA 997

Citation:		Thorpe v Commissioner of Taxation [2012] FCA 997
Appeal from:		Thorpe v Commissioner of Taxation [2011] AATA 638
Parties:		ANDREW THORPE v COMMISSIONER OF TAXATION
File number:		WAD 411 of 2011
Judge:		SIOPIS J
Date of judgment:		7 September 2012
Date of last submissions:	7 September 2012
Place:	Perth
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	7
Counsel for the Applicant:	Mr S Tisher
Solicitor for the Applicant:	BW Duckham & Co
Counsel for the Respondent:	Mr S Wright
Solicitor for the Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 411 of 2011

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	ANDREW THORPE Applicant
AND:	COMMISSIONER OF TAXATION Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	7 SEPTEMBER 2012
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The applicant has leave to amend his notice of appeal as follows:

(a)By adding a new paragraph 6 under the heading “Questions of Law” as follows:

6.  Whether the Tribunal made an error of law amounting to a constructive failure to exercise its jurisdiction by substantially reproducing the respondent’s written submissions verbatim and without attribution in its reasons for decision.

(b)By adding a new paragraph 6 under the heading “Grounds Relied On” as follows:

6.  By substantially reproducing the respondent’s written submissions verbatim and without attribution in its reasons for decision the Tribunal constructively failed to exercise its jurisdiction.

2.The appeal is allowed by consent.

3.The decision of the Tribunal on 12 September 2011 and the reasons for decision are set aside.

4.The matter is to be remitted to the Tribunal, differently constituted, to be heard and decided again with the hearing of further evidence.

5.The respondent is to pay the applicant’s costs of the appeal to be taxed.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 411 of 2011

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	ANDREW THORPE Applicant
AND:	COMMISSIONER OF TAXATION Respondent

JUDGE:	SIOPIS J
DATE:	7 SEPTEMBER 2012
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an appeal on a question of law from the Administrative Appeals Tribunal (the Tribunal).  It is set down for hearing in October 2012.  At the last directions hearing, counsel for the applicant foreshadowed that his client was considering an amendment to his notice of appeal to allege a constructive failure by the Tribunal to exercise its jurisdiction by reason of the unattributed reproduction of a substantial part of the Commissioner of Taxation’s submissions as its reasons for decision.  Counsel referred to the decision of LVR (WA) Pty Ltd (ACN 095 742 635) v Administrative Appeals Tribunal (2012) 289 ALR 244 (LVR) in support of his submission.

2. The parties have now filed with the Court a memorandum of consent orders which provides for the amendment of the applicant’s notice of appeal to include this ground of appeal.  The parties have also provided in the memorandum for an order allowing the appeal, and ancillary orders.

3. The parties have furnished the Court with a marked up copy of the reasons for decision of the Tribunal, the subject of this appeal.

4. The marked up parts of the reasons for decision reflect the extent to which the reasons for decision of the Tribunal reproduces the Commissioner of Taxation’s submissions.  A perusal of the marked up copy reflects that about 95% of the reasons for decision comprise an unattributed reproduction of the Commissioner of Taxation’s submissions before the Tribunal.

5. In LVR, the Full Court dealt at some length with the circumstance of the reasons for decision of the Tribunal comprising the unattributed reproduction of a substantial part of the submissions of one of the parties.  In that case, also, the Full Court found that about 95% of what purported to be the reasons for decision of the Tribunal actually comprised the unattributed reproduction of the Commissioner of Taxation’s submissions before the Tribunal.  At [5] of its reasons for decision, the Full Court said that:

   [T]hese circumstances would give rise to a serious concern that the tribunal had failed to bring its own mind to bear on the issues before it and thus that it had constructively failed to exercise its jurisdiction.

6. However, it was unnecessary for the Full Court to found its decision to set aside the Tribunal’s decision upon those circumstances.  This is because the Full Court found that the Tribunal had, in any event, failed to have regard to a relevant consideration.

7. In my view, the extent of the unattributed reproduction of the Commissioner of Taxation’s submissions in the Tribunal’s reasons for decision in this case, is sufficient to found the conclusion that the Tribunal did not bring to bear its own mind on the issues before it, and so constructively failed to exercise its jurisdiction.  Accordingly, the Tribunal has committed an error of law which has invalidated its decision.  I will, therefore, make orders in terms of the minute of consent orders allowing the appeal, setting aside the Tribunal’s decision, as well as the ancillary orders.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        10 September 2012