i
| JUDGMENT No. ......,........ ... | I ........ .... | I - | L . |
IN THE FEDERAL COURT OF AUSTRALIA )
| QUEENSLAND DISTRICT REGISTRY | ) NOS. QG 80 and QG 81 of 1993 |
| GENERAL DIVISION | 1 |
No. OG 80 of 1993
BETWEEN: RUSSELL GORDON HAIG MATHEWS
Applicant
AND: BARRY REINECKER. SECRETARY.
TAX AGENTS' BOARD OF OUEENSLAND
Respondent
No. OG 81 of 1993
BETWEEN: RUSSELL GORDON HAIG MATHEWS
Applicant
AND: W.D. MULHERIN, DEPUTY COMMISSIONER
OF TAXATION
Respondent
MINUTES OF ORDER
| JUDGE MAKING ORDER: | Spender J. |
| DATE OF ORDER: | 16 February 1994 |
| WHERE MADE: | Brisbane |
| THE COURT ORDERS THAT: |
I: ,
| 1. | Each of the applications Nos. QG80 of 1993 and QG81 of | 1. | * |
| 1993 is dismissed. | !.. |
| I |
| 2 . | The applicant in QG80 of 1993 and in QG81 of 1993 is to |
| pay to the respondent in each matter that respondent's | i - |
| costs of the application and motion, to be taxed if not | 1 / |
| agreed. | 1 | I |
| I | NOTE: | Settlement and entry of orders is dealt with in 0. 36 |
| i | of the Federal Court Rules. |
| l |
IN THE FEDERAL COURT OF AUSTRALIA )
| DUEENSLAND DISTRICT REGISTRY | ) NOS. QG 80 and QG 81 of 1993 |
| GENERAL DIVISION | ) |
No. OG 80 of 1993
BETWEEN: RUSSELL GORDON HAIG MATHEWS
Applicant
AND:
TAX AGENTS' BOARD OF OUEENSLAND
Respondent
No. OG 81 of 1993
BETWEEN: RUSSELL GORDON HAIG MATHEWS
Applicant
AND: W.D. MULHERIN. DEPUTY COMMISSIONER
OF TAXATION
Respondent
| CORM: | Spender J. |
| PLACE : | Brisbane |
| DATE- |
| -- | 16 February 1994 |
REASONS FOR JUDGMENT
I have before me two motions. The first relates to
proceedings No. QG80 of 1993 in respect of which an application
| was filed on 17 May 1993 with an affidavit of Mr Mathews also | filed on that day. The parties, as described by M r Mathews, are |
himself, as applicant, and M r Barry Reinecker described as
Secretary, Tax Agentsr Board of Queensland, as respondent. |
| It seems to me that, having regard to the provisions of the Freedom of Information Act 1982 (the 'F01 Act') and, in particular, provisions of S. 29 of that Act, the appropriate respondent would be the Tax Agents' Board of Queensland ('the Boardr), being the agency to whom a request for access to |
L
documents was made, and in respect of which request the application under the provisions of the Administrative Decisions jJudicial Review) Act 1977 (the 'ADJR Act') was brought.
The other notice of motion relates to proceedings No. G81 of 1993 which are also proceedings commenced by application with supporting affidavit, both of which were filed on 17 May 1993. The parties in proceedings No. G81 of 1993 are Mr Mathews as applicant, and the Deputy Commissioner of Taxation as respondent.
The notice of motion in each case was filed in court on the first return day of each of the proceedings, that day being the 23rd July 1993. For convenience, and with the consent of the parties, both motions were entertained by the court together, but it is convenient to consider each motion separately.
I will deal first with the motion filed seeking the summary dismissal of proceedings QG80 of 1981. Those proceedings deal with requests for access to documents pursuant to the F01 Act.
| numerous requests of the Board for access to documents pursuant | In December 1992 and January 1993 Mr Mathews made certain and |
| to the F01 Act. Those requests contained a further request that fees and charges be remitted or waived. A typical request is that contained in one of many letters dated 7 December 1992, addressed to the secretary of the Board, where he says: |
" Please waive and/or remit all fees and charges that are due or otherwise payable now or in the future in relation to this application or otherwise, as I am without means, I have no assets, I am unemployed.
My sole source of income is Social Security.
Payment o f a n y fees whatsoever w i l l cause me
| f i n a n c i a l | hardsh ip . | " |
The material shows that, at least at the time of that request, Mr Mathews was an undischarged bankrupt. By letter dated 18 February 1993, which was attached to the application that M r Mathews filed to commence proceedings against the Board, the Australian Government Solicitor advised that the Board had declined the request for remission of charges and fees, and that a deposit of $659.27 was required to be paid to enable access to be granted.
That letter comes within the provisions of S. 29(1) of the
F01 Act, which relevantly provides:
| " | ( 1 ) Where, | under | the r e g u l a t i o n s , | a n agency o r |
| Minister | d e c i d e s | t h a t | an | a p p l i c a n t | i s l i a b l e t o |
| p a y | a | charge | ( n o t b e i n g an | a p p l i c a t i o n | fee) | i n |
| r e s p e c t o f a r e q u e s t for | a c c e s s t o a | document, | or |
| the p r o v i s i o n | o f a c c e s s t o a | document, | the agency |
| or M i n i s t e r mus t | g i v e | t o the | a p p l i c a n t | a | w r i t t e n |
| n o t i c e | s t a t i n g : |
| S . . |
| (b) | the | agency ' s | o r | Minister's | p r e l i m i n a r y |
| assessment o f the amount o f the charge, and |
| the b a s i s on which | the as se s smen t i s made; |
| and |
S . .
| ( f ) | t h a t the a p p l i c a n t m u s t , | w i t h i n the per iod | o f |
| 30 days , | o r such f u r t h e r p e r i o d | a s the agency |
| o r Minister | a l l o w s , | a f t e r | the | n o t i c e | was |
| g iven , | n o t i f y the | agency or | Minister | i n |
| w r i t i n g : |
| ... |
| (ii) | i f | the | a p p l i c a n t | c o n t e n d s | t h a t | the |
charge h a s been wrong l y a s s e s s e d , or shou ld be reduced o r not imposed, o r b o t h - t h a t the a p p l i c a n t s o con tends ,
| g i v i n g | the | a p p l i c a n t ' s | r e a s o n s | f o r | so |
| ( g ) | t h a t | i f the | a p p l i c a n t | f a i l s | t o | g i v e | the |
| agency o r Minister such a notice | w i t h i n t h a t |
| per iod | o r | f u r t h e r | p e r i o d , | the | r e q u e s t | f o r |
| a c c e s s | t o the document | w i l l be | t a k e n t o h a v e |
In accordance with that provision, the letter notified
Mr Mathews that if he contended that the charge imposed had been
wrongly assessed, or should be reduced or not imposed, he should say so in writing within 30 days giving his reasons, and that if he did not do so or take other steps, that request was taken to be withdrawn.
On 10 March 1993, M r Mathews wrote detailing his financial circumstances. That letter also is attached to the application filed on 17 May 1993. The letter is expressed in a way that could be regarded as offensive. He concluded by saying:
| " | I | p r e s e n t l y | h a v e | $10.76 | i n m y p e r s o n a l | b a n k |
| a c c o u n t . | A s you know, | I | am b a n k r u p t and h a v e no |
| a s s e t s | w h a t s o e v e r . | O f | c o u r s e | I | m u s t | r emind you |
| t h a t | the | f a c t | t h a t | I | am | b a n k r u p t | d o e s | not |
| j u s t i f y | P u b l i c | S e c t o r | P a r a s i t e s | a c t i n g | U l t r a |
| V i r e s t o a t t e m p t | t o t h w a r t | a n y l e g a l | a c t i v i t i e s |
| I | may be p u r s u i n g . | " |
| In a letter, incorrectly dated, which the parties agree was sent on 22 April 1993, the Australian Government Solicitor
wrote in these terms: |
| " | I | refer t o o u r t e l e p h o n e d i s c u s s i o n | t o d a y . |
| I t | i s | not | entirely | c l e a r | t h a t | y o u r |
| c o r r e s p o n d e n c e | d a t e d | 10 | I tarch | c o n s t i t u t e d | a |
| r e q u e s t f o r i n t e r n a l r e v i e w for | the purposes | o f |
| the Freedom | o f I n f o r m a t i o n A c t . | In | a n y event, |
| I | refer t o the provisions | o f s u b s e c t i o n 29(7) o f |
| the s a i d A c t | w h i c h p r o v i d e s , | i n e f f ec t , t h a t the |
| o r i g i n a l | d e c i s i o n | i s | deemed | t o | h a v e | been |
| a f f i r m e d | i f y o u | h a v e | not | r e c e i v e d | n o t i c e | o f |
| r e v i e w w i t h i n | 28 | d a y s . |
Please d i r e c t a n y correspondence concern ing t h i s
| m a t t e r | t o this o f f i c e . |
There had in fact been no response to Mr Mathews' letter
| of 10 March 1993. | Section 2 9 ( 4 ) provides: |
| " | Where the a p p l i c a n t h a s n o t i f i e d the agency or |
| h3nisterr i n a manner ment ioned i n subparagraph |
| ( 1 ) ( f ) (ii), t h a t the a p p l i c a n t con tends t h a t the |
| charge should be reduced o r n o t imposed, | the | |
| agency o r M i n i s t e r may d e c i d e | t h a t | the | charge i s | |
| t o be reduced o r n o t t o be imposed. | " | |
| And S. | 2 9 ( 7 ) provides: |
| |
| ( a ) | t h a t pe r iod o f 28 days h a s e lapsed s i n c e the d a y on which the agency o r Minister was s o |
| |
| (b) | | the | a p p l i c a n t | h a s | n o t | r e c e i v e d | n o t i c e o f | a | |
| d e c i s i o n on | the amount | o f charge payable; | |
| t h e | | p r i n c i p a l | o f f i c e r o f | the | agency, | or | t h e | |
| M i n i s t e r , | a s | the | c a s e | r e q u i r e s , | i s , | f o r | a l l |
| purposes | o f th is A c t , | t a k e n t o have made, | on the |
| l a s t d a y o f | the p e r i o d , | a | d e c i s i o n | t o the | e f f e c t |
| t h a t the amount o f charge payable | i s the amount |
equal t o the agency 's or Minister's p r e l i m i n a r y assessment of the amount o f the charge mentioned
| i n paragraph | ( l ) | (b) | . " |
| The application in No. QG80 of 1993 was filed on 17 May contains significant deficiencies, particularly having regard to | 1993. That application should be set out in full because it |
| the provisions of the rules and the requirements of Form 56 of the Federal Court Rules. The application is in the following |
| terms : |
" O n the grounds appear ing i n the accompanying
| A f f i d a v i t | the | a p p l i c a n t | c l a i m s : |
| 1. | The | c o u r t | g ran t | a n | o r d e r o f r e v i e w pursuant |
| t o | Common | Law | and /or | s e c t i o n | 5 | o f | the |
| A d m i n i s t r a t i v e | Decisions | ( J u d i c i a l | Review) | Act |
| 1977, | o f the d e c i s i o n o f Mr | B a r r y Re inecke r , | a s |
| d e t a i l e d | i n | the | letter | o f | the | A u s t r a l i a n |
Government Solicitor, dated 18 February 1993 and
signed by one John E. Bishop (copy attached).
2. In the alternative, that the Court grant an order of review pursuant to the deemed decision of Barry Reinecker as detailed in the letter of John E. bishop dated 16 February 1993, which was actually received on the 23 April 1993 (copy attached), and apparently should have been dated 22 April 1993, in response to my letter faxed to Reinecker of 10 March 1993 (copy attached) as per clauses six and seven B of letter ex Bishop of 18 February 1993. "
Paragraph 2 of the affidavit referred to in the
application sets out the statutory terms of the grounds for
review in the ADJR Act. There are no matters referred to that
are not simply a recitation of the Act. However, the affidavit continues in paragraphs 3, 4 and 5 to speak in an anecdotal way of what is said to be an oppressive scheme between the secretary of the Board, and a public servant in the Australian Tax Office ('ATO') at Chermside; a conspiracy between the secretary and another officer of the Australian Tax Office at Chermside; and parts of what is said to be a continuation of the process of oppression by the executive arm of government.
| The notice of motion filed by leave on 23 July 1993, |
seeks that the application to review the decision set out in paragraphs 1 and 2 of the application filed on 17 May 1993 be dismissed on the grounds that it was not made within time; that the application amounts to an abuse of process and is procedurally flawed; and that in any event the court should
exercise the discretion conferred by S. lO(2) (b) (ii) of the ADJR
Act, in the light of the fact that the matters raised in Q680 of
1993, can, pursuant to S. 55 of the F01 Act itself, be dealt with
in the Administrative Appeals Tribunal.
| The consequence of ss. ll(1) (c) and ll(3) (b) | (iii) of the |
ADJR Act is that the application in proceedings No. QG80 of 1993 was required to be lodged within a period ending on the 28th day after the letter of 18 February was furnished to the applicant. The court has power to extend time pursuant to S. 11(1), but no resort to that power has thus far been claimed by the applicant, although in his submissions to me today he suggested that the court might, of its own motion, consider the question of an extension of time. There is in the material thus far no application for any extension of time, nor any explanation for the reasons why any such extension of time should be granted.
In respect of the time within which an application should have been brought, at the worst for the respondent in QG80 of 1993, Mr Mathews had received the communication by 10 March 1993, since that was the date of his letter referring to it, in
| which case the application ought to have been filed on or before | 7 April 1993. On the material before me, it is not necessary to |
| refer to the requirements of which the court should be satisfied before it should exercise the power given to it in S. 11. The application is out of time, and no basis has been shown as to why an extension of time should be granted. |
The submission that the applicant in proceedings No.
QG80 of 1993 is not in compliance with the Rules is also, it
seems to me, made out. It is not simply a question of there |
| being some non-compliance in an unimportant or trivial respect. |
| The ADJR Act makes it plain that substantial compliance with the |
| rules is all that is required, but on no view, it seems to me, |
| can the application in QG80 of 1993 be seen to comply with the Rules relating to an application for an order to review under the |
| ADJR Act. There is no material indicating the factual basis of |
the application, and the affidavit material does not plug any of
the deficiencies. |
| Both the question of the extension of time and the question of the form and content of the application and supporting material might, on one view, be the subject of correction by 14r Mathews should that opportunity be afforded to |
| him, but it seems to me that in respect of proceedings No. QG80 |
| of 1991 the consideration that there are alternative remedies available to Mr Mathews is such that the proceedings ought to be |
| dismissed in the exercise of the discretion conferred by |
| S. 10(2)(b)(ii) of the ADJR Act. That paragraph is in these |
| terms : |
| " Notwithstanding subsection (1) | : |
, . .
| (b) | the 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: |
. . .
that adequate provision is made by any
| (ii) | 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. "
Section 55 of the F01 Act, to which I have earlier referred, provides relevantly:
| " | ( 1 ) | Subjec t | t o t h i s s e c t i o n , | an a p p l i c a t i o n may |
| b e made | t o t h e A d m i n i s t r a t i v e | Appeals | Tribunal |
| f o r | r e v i e w o f : |
| . | . . |
| ( d ) a | d e c i s i o n | under | s e c t i o n | 29 | r e l a t i n g | t o |
| i m p o s i t i o n o f a | charge | o r t h e amount | of a |
| charge; |
. . .
The material suggests no reason why that course would not be an appropriate and efficient one, save for one factor advanced by Mr Mathews. It is said on his behalf that the filing fee for an application to the Administrative Appeals Tribunal is $300 and that there is no power in the Tribunal to remit that fee. Since he is, he says, impecunious, that is a factor precluding the Court from being satisfied that there is an "adequate" alternative remedy. There is, of course, power in the Federal Court to waive the filing fees associated with applications brought in this Court, although whether that ought to happen is a matter for judgment in each case.
| That consideration does not seem to me to be a sufficient answer to the fact that this is a matter which is not only within the competence of the AAT, but is one most suited to that course rather than review under the ADJR Act, when one remembers particularly the want of compliance with proper procedures in the proceedings thus far in this Court. The F01 Act, like the legislation under consideration in Swan Portland Cement Limited v Com~troller-General of Customs 29 FCR 523 |
| provides its own method of review. | I have had regard to the |
observations of the Full Court in that case at 530, where the
court said:
| " | The l e a r n e d pr imary | judge | po in t ed | o u t t h a t the |
| l e g i s l a t i o n provided | ' i t s own method | o f r e v i e w ' , |
| r e f e r r i n g t o an | a p p l i c a n t ' s | r i g h t | t o go | t o the |
| Anti-Dumping | A u t h o r i t y r e f e r r e d | t o above . | H i s |
| Honour | a l s o remarked | t h a t , | ' i t shou ld | n o t be |
| though t | t h a t i t | i s always | a p p r o p r i a t e | t o b r i n g |
| a | m a t t e r | o f | th is k i n d | before | the | Cour t ' . | W e |
| agree | and | e x p r e s s | the | v i e w | t h a t | i n | many, |
| (perhaps m o s t ) c i rcums tances , | the Cour t ' S proper |
| r e s p o n s e | t o | an | a p p l i c a t i o n | o f | th is | p a r t i c u l a r |
| s o r t | shou ld | n o t be | t o embark | upon | a | f u l l |
| h e a r i n g , | b u t r a t h e r | t o exercise | the | d i s c r e t i o n |
| under | S . | 1 0 ( 2 ) (b) (ii) | a d v e r s e l y | t o | the |
I considered that case and others dealing with the exercise of the court's power under section lO(2) of the ADJR Act in Queensland Newsaqents Federation Limited v Trade Practices Commission (1993) ATPR 41-276, including m v Coates 35 ALR 93 where it is stated, at 95, that:
| " | The onus i n s u b s e c t i o n 2 | o f section | 10 o f the |
| ADJR | A c t | i s on | the p a r t i e s | s e e k i n g t o persuade |
| the c o u r t | t o exercise | i t s d i s c r e t i o n . | " |
| But I am satisfied here that S. 55 does make adequate provision for review. The material does not satisfy me that the circumstance to which Mr Mathews has referred - namely, the inability of the Tribunal to remit the filing fee of $300 - is one which ought to change what otherwise would be the proper exercise of the judicial discretion conferred by the ADJR Act. I have had regard to the quantum of the filing fee and to the material touching the resources of Mr Mathews in reaching that view. It is a one-off fee. |
In the view I take of the material, there is no feature here pointing against the exercise of the discretion conferred by S. lO(2) of the ADJR Act and for that reason alone, proceedings No. QG80 of 1993 should be dismissed.