Walters and Commissioner of Taxation
[2013] AATA 834
•22 November 2013
[2013] AATA 834
Division TAXATION APPEALS DIVISION
File Number 2012/4900
Re Cheryl Walters
APPLICANT
And Commissioner of Taxation
RESPONDENT
File Number 2012/4902
Re Kevin Walters
APPLICANT
And Commissioner of Taxation
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 22 November 2013
Place Melbourne
The Tribunal has decided that:
1.the effect of the Declaration made by the Federal Court on 17 October 2013 in proceeding No. VID285/2013 is that:
(1)the part of the Tribunal’s decision relating to its power to review the respondent’s objection decisions in so far as they relate to the assessment of income tax is to be treated as not having been made; and
(2)in place of that
(a)in proceedings No. 2012/4900, the Tribunal substitutes a decision:
(i) to set aside that part of the objection decision; and
(ii)to substitute a decision that the Tribunal has no power to review that part of the objection decision made by the Commissioner in relation to the C Walters income tax assessment; and
(b)in proceedings No. 2012/4902, the Tribunal substitutes a decision:
(i) to set aside that part of the objection decision; and
(ii)to substitute a decision that the Tribunal has no power to review that part of the objection decision made by the Commissioner in relation to the K Walters income tax assessment; and
2.Both proceedings are adjourned until the applicants lodge further applications for review of the respondent’s objection decisions relating to the assessments of income tax in relation to each applicant.
…[sgd].………..…
Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – FEDERAL COURT DECLARATION – by consent – no reasons explaining how jurisdictional error made by Tribunal – relevant part of Tribunal’s decision not set aside - Tribunal able to implement Declaration because Bhardwaj principles mean that the Tribunal is treated as not having previously exercised its power on that issue and so is not functus officio.
PRACTICE AND PROCEDURE – FEDERAL COURT DECLARATION – Declaration must be treated as judgment that Tribunal incorrect on each of alternative bases of reasoning – judgment to be considered with other Federal Court authorities on the legal issue.
LEGISLATION
Acts Interpretation Act 1901, s 33
Administrative Appeals Tribunal Act 1975, s 44
Education Services for Overseas Students Act 2000
Equity Act 1901 (NSW), s 10
Federal Court Act 1976, ss 5, 19, 23, 25
Judiciary Act 1901, s 39B
Migration Act 1958, ss 134, 360
National Vocational Education and Training Regulator Act 2011
Taxation Administration Act 1953, s 14ZY
Trade Practices Act 1974, ss 45, 46
CASES
Alhila v Minister for Immigration and Multicultural Affairs [2001] FCA 1759
Bradken Limited v Norcast S.ár.L [2013] FCAFC 123
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307
Forster v Jododex Australia Pty Limited (1972) 127 CLR 421
Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; (2009) 174 FCR 574; 107 ALD 503
Jackson v Sterling Industries Limited (1987) 162 CLR 612
Johnson v Veterans’ Review Board [2005] FCA 1136; (2005) 88 ALD 652; 41 AAR 120
Kennedy v Administrative Appeals Tribunal [2008] FCAFC 124; (2008) 168 FCR 566; 249 ALR 87; 103 ALD 238; [2008] ATC 20-037; 73 ATR 276; 48 AAR 500
Khan v Minister for Immigration & Multicultural Affairs [2001] FCA 1674
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; 76 ALJR 598
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; 195 ALR 24
Re Zhang and Minister for Immigration and Citizenship [2012] AATA 475; (2012) 129 ALD 646
Rural Press Limited and Others v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53; 203 ALR 217
Vietnam Veterans’ Association of Australia (NSW Branch) Inc v Specialist Medical Review Council and Another [2002] FCA 733; (2002) 69 ALD 553
VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91; (2005) 141 FCR 291
Weng v Minister for Immigration and Citizenship (No 2) [2011] FCA 444
Xiao v Minister for Immigration and Multicultural Affairs [2001] FCA 459
Yulianti v Minister for Immigration & Multicultural Affairs [2001] FCA 142REASONS FOR DECISION
On 17 October 2013, Gordon J made a Declaration in a matter named Commissioner of Taxation v Administrative Appeals Tribunal, Cheryl Walters and Kevin Walters[1] on an application for relief made by the Commissioner of Taxation (Commissioner) under s 39B of the Judiciary Act 1901 (Judiciary Act). Although there is no statement on the face of the Declaration that it was made by consent, a statement to that effect appears on the electronic record.[2] Unquestionably, whether made by consent or not, I am bound by the Declaration but two matters arise as a result of its having been made. The first is the way in which the matters raised by the application should proceed. The second is what regard can be had to the Declaration in the wider context of the law that is applicable if the same point were to raise itself in the future. I raised these matters with the parties.
[1] Federal Court proceedings No. (P)VID285/2013
[2] The Outcome is shown as “Finalised – Granted/Allowed by Consent” on the Federal Law Search at the Commonwealth Courts Portal at
With regard to the first matter, the parties agree that the application must be regarded as applications for review of the objection decisions on Mr and Mrs Walters objection to the Commissioner’s assessment of penalties. Although Gordon J did not set aside that part of my decision to which the Declaration relates, I have decided that she must have found jurisdictional error in relation to the application for review of the objection decisions in so far as they relate to the assessments of income tax in order to make the Declaration. Applying principles of the sort underpinning Minister for Immigration and Multicultural Affairs v Bhardwaj[3] (Bhardwaj), that leads to the conclusion that I must treat that part of my decision relating to the Tribunal’s power to review the Commissioner’s objection decisions relating to the assessments of income tax of as not having been made. Therefore, my power to make a decision in the terms of the Declaration and so to implement that Declaration have not been exhausted.
[3] [2002] HCA 11; (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; 76 ALJR 598; Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Kirby J dissenting
Having done that, I must then look at what I am required to do. I am required to set aside that part of each objection decision that relates to the assessment of income tax and substitute a decision that the Commissioner not take any action under Part IVC of the Taxation Administration Act 1953 (TAA) unless and until Mr or Mrs Walters, as appropriate, objects against them in the manner prescribed under Part IVC of the TAA. That raises a question of the power that I have to do what is required of me. The power given to me under s 43 of the Administrative Appeals Tribunal Act 1975 (AAT Act), and not modified by the TAA, gives me powers for the purpose of reviewing an objection decision but does not give me power to direct the Commissioner generally in the exercise of his powers. It seems to me that what I am meant to do is to set aside that part of my decision that concluded that the Tribunal has power to review the objection decisions in relation to the assessments relating to income tax. Therefore, I have done that. Furthermore, it seems to me that the practical outcome that the Declaration sought to achieve is that the Tribunal would adjourn further consideration of the objection decisions in so far as they relate to penalties until Mr and Mrs Walters have lodged fresh objections on the assessments relating to income tax, the Commissioner has made fresh objection decisions on those objections and Mr and Mrs Walters have lodged further applications for review of his objection decisions. Therefore, that is the course I have taken.
The second matter goes beyond the bounds of this case. It raises the difficulties that the Tribunal faces when the Federal Court makes decisions by consent on appeals lodged from its decisions but does not give reasons. In the course of these reasons, I will refer to the difficulties that the Declaration causes me and also draw on examples that have arisen when an appeal has been lodged under s 44 of the AAT Act. Had I been given reasons of any sort, I would not have dreamt of writing these reasons for I would not have questioned them. Whether I agreed with them or not would have been completely irrelevant. If there were a difficulty in reconciling them with other authorities, I would have left their analysis when and if the issue arose in the future.
BACKGROUND
I set out the history of these matters in my earlier reasons for decision.[4] I will repeat only that part of the Notice of objection decision issued by the Commissioner. Both were in similar terms. The relevant part of that issued to Mrs Walters reads:
[4] Re Walters and Commissioner of Taxation [2013] AATA 151
“On 2 March 2012 you lodged an objection against:
a)An income tax amended assessment for the year ending 30 June 2010.
b)An income tax administrative penalty assessment for the year ending 30 June 2010.
We have considered your objection and made the following decisions:
Tax or penalty assessment
Objection decision
Income tax amended assessment for year ending 30 June 2010.
Disallowed.
Income tax administrative penalty for year ending 30 June 2010.
Disallowed.”
The Commissioner then set out his reasons for reaching that decision. Mrs Walters was advised that she had 60 days in which to seek a review of the decision and that a “Review rights fact sheet” was enclosed and would provide more detail. The Fact Sheet advised Mrs Walters of her right to apply to the Tribunal or to appeal to the Federal Court.
When Mr and Mrs Walters did apply to the Tribunal for review, the Commissioner took the view that they could not do so in relation to the assessments as they had not lodged valid objections to them. He conceded that they had lodged valid objections to the assessments of penalties. The Commissioner’s position was that there could be no application unless there were a valid objection decision and there could be no valid objection decision in the absence of a valid objection. He developed two bases for his position. First, he said, the objection form and a notice of objection attached to the form, constituted an objection on behalf of the K&C Walters Trust and not on behalf of Mr and Mrs Walters individually. The second was that, if there was a valid objection lodged on behalf of each of Mr and Mrs Walters, it was lodged before the amended assessments were issued.
On 20 March 2013, I decided:
“The Tribunal decides that it has jurisdiction to review:
(1)the objection decision made by the respondent on 2 May 2012 in relation to the amended assessment and the assessment of penalty issued to the applicant, Cheryl Walters, on 8 March 2012; and
(2)the objection decision made by the respondent on 2 May 2012 in relation to the amended assessment and the assessment of penalty issued to the applicant, Kevin Walters, on 2 March 2012.”
My reasons for reaching that decision were expressed in the alternative. In summary, they were:
(1)“…I have decided that the objections to the amended assessments of penalty were properly made and the Commissioner has conceded that they were. It has not been established that any particular form had to be followed and, taken in their context of material already known to the Commissioner, they provided sufficient detail to satisfy s 14ZU of the Taxation Administration Act 1953 (TAA). …”; and
(2)even if I were incorrect on that basis:
“There is a separate basis on which the Tribunal has jurisdiction to review the objection decisions in relation to both the assessments and the income tax amended assessments. That follows from the principles set out by the majority of the Full Court in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd[5] (Brian Lawlor). That the objection decisions have been made is a matter of fact. The Tribunal’s power to review them comes from the fact that s 14ZZ(1)(a)(i) of the TAA provides that a person may apply to the Tribunal for their review. Section 25(4) of the Administrative Appeals Tribunal Act 1975 (AAT Act) provides that the Tribunal has power to review that decision when the application is made. …”.
[5] [1979] FCA 21; (1979) 24 ALR 307; Bowen CJ, Smithers and Deane JJ
On 16 April 2013, the Commissioner for Taxation (Commissioner) lodged an Originating Application for Relief under s39B Judiciary Act 1903 together with an affidavit in support (Affidavit). The Affidavit described the Tribunal’s decision in the following terms:
“On 20 March 2013, the Tribunal … relevantly decided that it has jurisdiction to review:
16.1that part of the C Walters objection decision that purported to allow a taxation objection against the C Walters income tax assessment; and
16.2that part of the K Walters objection decision that purported to allow a taxation objection against the K Walters income tax assessment.”
A copy of the Tribunal’s decision and reasons for decision was annexed as “NDK11” to the affidavit. Reference to that and to [2] above shows that the Affidavit’s description of the Tribunal’s decision was not accurate.
(1)Reference was not made in my decision to “that part of the C Walters objection decision that purported to allow a taxation objection against the C Walters income tax assessment” (emphasis added) as described in the Affidavit but to “the objection decision made by the respondent” (emphasis added).
On 22 April 2013, the Tribunal lodged a “Submitting Notice” in the proceedings.
On 17 October 2013, Gordon J made the following Order:
“THE COURT DECLARES THAT:
1.The only decision that the First Respondent may make, pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975, in carrying out its review of that part of the Applicant’s objection decision dated 2 May 2012 that purported to disallow a taxation objection in respect of the C Walters income tax assessment under s 14ZY(1) of the Taxation Administration Act 1953, is a decision:
1.1 to set aside that part of the objection decision; and
1.2to substitute a decision that no action be taken by the Applicant pursuant to Pt IVC of the Taxation Administration Act 1953 in relation to the C Walters income tax assessment unless and until the Second Respondent objects against the C Walters income tax assessment in the manner prescribed by Pt IVC of the Taxation Administration Act 1953.
2.The only decision that the First Respondent may make, pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975, in carrying out its review of that part of the Applicant’s objection decision dated 2 May 2012 that purported to disallow a taxation objection in respect of the K Walters income tax assessment under s 14ZY(1) of the Taxation Administration Act 1953, is a decision:
2.1 to set aside that part of the objection decision; and
2.2to substitute a decision that no action be taken by the Applicant pursuant to Pt IVC of the Taxation Administration Act 1953 in relation to the K Walters income tax assessment unless and until the Third Respondent objects against the K Walters income tax assessment in the manner prescribed by Pt IVC of the Taxation Administration Act 1953.
AND THE COURT ORDERS THAT:
3.The applicant pay the Second Respondent’s and the Third Respondent’s costs on a party and party basis, and in default of agreement the costs be taxed.”
On 28 October 2013, a copy of her Honour’s order was received in the Tribunal’s Sydney Registry and subsequently sent on to me.
ISSUES
The issues that are raised by the Order include:
(1)Identification of that part of the objection decision that remains reviewable.
(2)How do I implement the Declaration given that the relevant part of my decision has not been set aside?
(3)What power do I have to direct the Commissioner not to take action?
(4)What does the Declaration stand for in the wider context of merits review?
HOW TO PROCEED FOLLOWING THE DECLARATION
How to proceed in the absence of an order setting aside Tribunal’s decision
I am bound by the Declaration in so far as it sets aside “… that part of the Applicant’s objection decision dated 2 May 2012 that purported to disallow a taxation objection in respect of the K Walters income tax assessment under s 14ZY(1) of the Taxation Administration Act 1953” and substitutes another decision in its place. The form in which the Declaration is made leaves for review the objection decisions in so far as they related to the assessment of penalties imposed on each of Mr and Mrs Walters.
Am I required to take any step to implement the Declaration? On one view of the matter, I exhausted my powers on the issue when I made my decision and the AAT Act does not give me any express power to vary it. As Lander J said in Johnson v Veterans’ Review Board:[6]
“ The proceedings before the AAT are quite formal. The AAT is given extensive powers to vary or set aside administrative decisions and its decision will stand in substitution for the decision-maker’s decision. The AAT Act evinces an intention that the AAT will become functus officio on making its decision. That is confirmed by the provisions of s 43AA and the right of appeal which is given to a party from the AAT’s decisions.
There is nothing in the AAT Act from which it may be implied that the AAT has a power to enter into a review of its own decisions….”[7]
[6] [2005] FCA 1136; (2005) 88 ALD 652; 41 AAR 120
[7] [2005] FCA 1136; (2005) 88 ALD 652; 41 AAR 120 at [61]-[62]
It is arguable that the parties could have asked the Federal Court to exercise its power under s 23 of the Federal Court Act 1976, which provides:
“The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.”[8]
[8] Federal Court of Australia Act 1976, s 23
Had they taken that course, it is arguable that the parties could have asked the Federal Court to set aside that part of my decision that related to the objection decisions in so far as they related to the assessments of income tax. That would appear to be within the scope of the powers conferred by s 23 as it would have given me authority to substitute the decision required by the Declaration. As Brennan J explained in Jackson v Sterling Industries Limited,[9] that power:
“… confers on the Federal Court such powers as are necessary or incidental to the exercise of that Court’s jurisdiction. But that is not to say that the Court’s discretion to mould relief is at large. The relief which the Court is authorized to give does not extend beyond the grant of remedies appropriate to the protection and enforcement of the right or subject-matter in issue. …”[10]
[9] (1987) 162 CLR 612; Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ
[10] (1987) 162 CLR 612 at 620-621
I have also considered whether the Federal Court might have thought it unnecessary to set aside the relevant part of my decision because the mere fact that it has made its Declaration has that effect and I have concluded that it must have. My consideration on that point has taken me down the path laid by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj[11] (Bhardwaj). In summary, the Immigration Review Tribunal (IRT) had purported to review a decision but, after finding that it had failed to comply with s 360 of the Migration Act 1958 (Migration Act) requiring it to give Mr Bhardwaj an opportunity to appear, give evidence and present arguments, it reviewed the decision again and gave a second decision. When the High Court asked itself whether the IRT could make that second decision, it answered the question in terms of whether the IRT had made a decision at all when it purported to make its first decision. In brief, the High Court decided that the IRT had not made a decision at all as it had made a jurisdictional error.
[11] [2002] HCA 11; (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; (2002) 76 ALJR 598; Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Kirby J dissenting
The reasoning of Gaudron and Gummow JJ, with whom McHugh J concurred,[12] was that:
“… a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person’s rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. …”[13]
[12] McHugh J’s concurrence was subject to two important qualifications but they do not affect the principles on which the majority based their judgment. Gleeson CJ and Callinan J reached the same conclusion. Gleeson CJ concluded that it was inconsistent with the scheme of the Migration Act to conclude that the IRT could treat a decision as legally ineffective and consider a matter afresh simply because it had been persuaded that it had denied one of the parties procedural fairness. There was, however, more to it than a denial of procedural fairness. What had occurred was an error in fact leading the IRT to fail to conduct a review:
“In those circumstances, it was not inconsistent with the statutory scheme for the Tribunal, upon becoming aware that it had not given effect to its own intention, and that it had failed to conduct a review of the delegate’s decision, to give the respondent the opportunity which the statute required, which he wanted, and which the Tribunal had intended to give him. On the contrary, it was in accordance with the requirements of the Act.” ([2002] HCA 11; (2002) 259 CLR 597 at [15]; 606)
Hayne J and Callinan J reached the same conclusion. As Callinan J said, what had happened:
“… was something more than a breach of the rules of natural justice. It was a failure to exercise a jurisdiction which the Tribunal was bound to exercise. If one thing is abundantly clear, it is that the Tribunal must, if an application has properly been made … review the Minister’s decision. This means that the tribunal must exercise the jurisdiction of reviewing the Minister’s decision …”: ([2002] HCA 11; (2002) 259 CLR 597 at [163]; 649) and see per Hayne J at ([2002] HCA 11; (2002) 259 CLR 597 at [155]; 649)
[13] [2002] HCA 11; (2002) 259 CLR 597 at [53]; 616
Their Honours reached their conclusion based on the general law but also referred to the Migration Act under which the IRT reviewed certain migration decisions. The general proposition is found in s 33(1) of the Acts Interpretation Act 1901 (AI Act):
“Where an Act confers a power or imposes a duty, then the power may be exercised and the duty shall be performed from time to time as occasion requires.”
Their analysis of the Migration Act led them to conclude that:
“… a decision which does not involve jurisdictional error and which is not challenged within twenty-eight days is effective for all purposes notwithstanding that, for the purposes of that Part, it involves reviewable error. There is no like limit with respect to decisions involving jurisdictional error which may be the subject of proceedings in this Court. …”[14]
[14] [2002] HCA 11; (2002) 259 CLR 597 at [50]; 614
Early the following year, the High Court decided Plaintiff S157/2002 v Commonwealth of Australia[15] (S157). In their joint judgement, Gaudron, McHugh, Gummow, Kirby and Hayne JJ had said:
“… This court has clearly held that an administrative decision which involves jurisdictional error is ‘regarded, in law, as no decision at all’ ….
To say that a decision that involves jurisdictional error is not ‘a decision … made under [the] Act is not to deny that it may be necessary to engage in the reconciliation process … to ascertain whether the failure to observe some procedural or other requirement of the Act constitutes an error which has resulted in a failure to exercise jurisdiction or in the decision-maker exceeding its jurisdiction.”[16]
[15] [2003] HCA 2; (2003) 211 CLR 476; 195 ALR 24; Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ
[16] [2003] HCA 2; (2003) 211 CLR 476; 195 ALR 24 at [76]-[77]; 506; 45-46
It seems to me that the practical effect of the Declaration is that I made a jurisdictional error. Bearing these principles from Bhardwaj and S157, it must follow that the part of my decision relating to the Tribunal’s jurisdiction to review the Commissioner’s objection decisions in so far as they related to the assessments of income must be regarded as no decision at all. Therefore, I have not exercised the relevant power to make a decision at all and cannot be said to be functus officio. That leaves me free to implement the Declaration.
What power does the Tribunal have to implement the Declaration?
The statement that I made in the last sentence leads me to question the power that I have to implement the Declaration. In reviewing an objection decision, the Tribunal has the powers given by s 43(1) of the AAT Act:
“For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)affirming the decision under review;
(b)varying the decision under review; or
(c)setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.”
If it is implicit in the Declaration, as it surely must be, that the Tribunal does not have power to review that part of the Commissioner’s objection decisions relating to the assessments of income tax, it cannot have power to direct the Commissioner not to take any action under Part IVC of the TAA or otherwise in relation to those assessments. Its powers under s 43 of the AAT Act only arise if it is reviewing the objection decisions. They do not arise if it has no decision to review and that is the case here. All that I can do is to implement what I see to be the spirit of the Declaration and adjourn further consideration of the objection decisions in so far as they relate to penalties until Mr and Mrs Walters follow the processes under Part IVC and lodge applications seeking review of objection decisions to be made by the Commissioner in relation to their objections to the assessments relating to income tax.
PRACTICAL DIFFICULTIES ARISING FROM THE RESOLUTION OF APPLICATIONS AND APPEALS BY CONSENT AND WITHOUT REASONS
In this section of my reasons, I will touch on the practical difficulties that the Tribunal faces when the Federal Court makes decisions by consent on appeals lodged from its decisions but does not give reasons. In the main, I will focus on the particular difficulties that I perceive from the Declaration that was made in this matter. The precise nature of the difficulties will vary from case to case but arise equally in the resolution of applications for judicial review or of appeals under s 44 of the AAT Act when no reasons are given by the Federal Court.
General principles relating to the jurisdiction of the court to make a Declaration
Under s 39B(1A)(a) of the Judiciary Act, the Federal Court’s original jurisdiction includes jurisdiction in any matter in which the Commonwealth is seeking a Declaration. The scope of the jurisdiction was considered by the High Court in Forster v Jododex Australia Pty Limited[17]in the context of s 10 of the Equity Act 1901 (NSW). That section gave a judge sitting in equity in New South Wales the same power to grant declaratory relief as was given to a judge of the High Court in England by O. XXV, r 5:
[17] (1972) 127 CLR 421; McTiernan, Walsh, Gibbs, Stephen and Mason JJ
(1)“ The jurisdiction to make a declaration is a very wide one. Indeed, it has been said that ‘under O. XXV, r 5, the power of the Court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion’: Hanson v Radcliffe Urban District Council … [[1922] 2 Ch 490 at 507]; and Ibeneweka v Egbuna [[1964] 1 WLR 219 at 225]. However, the jurisdiction may be ousted by statute, although the right of a subject to apply to the court for a determination of his rights will not be held to be excluded except by clear words …”[18]
[18] (1972) 127 CLR 421 at 435-436 per Gibbs J
(2)“ It is neither possible nor desirable to fetter the broad discretion given by s. 10 by laying down rules as to the manner of its exercise. It does, however, seem to me that the Scottish rules summarized by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd … [[1921] AC 438 at 448], should in general be satisfied before the discretion is exercised in favour of making a declaration:
‘The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought.’
Beyond that, however, little guidance can be given. As Lord Radcliffe said in Ibeneweka v Egbuna …:
‘ After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration.”[19]
[19] (1972) 127 CLR 421 at 437-438 per Gibbs J
General principles relating to the form in which a Declaration is made
In Rural Press Limited and Others v Australian Competition and Consumer Commission,[20] the High Court considered a number of declarations to the effect that Rural Press Limited had contravened s 46 of the Trade Practices Act 1974 (TP Act), one of its subsidiaries had contravened s 45 and that two individuals were directly or indirectly knowingly concerned in the breaches of ss 45 and 46 and another individual in breaches of s 45. In their judgment on appeal, Gummow, Hayne and Heydon JJ described the declarations:
“… The declarations spoke merely of ‘an arrangement’ having a purpose and effect, without giving any content to that expression and without indicating the gist of the findings of the primary judge identifying the arrangement.
These declarations provide a bad precedent and were of a kind which the trial judge should not have agreed to make even if urged to do so by the parties. Close attention to the form of proposed declarations, particularly those ‘by consent’, should be paid by primary judges.”[21]
[20] [2003] HCA 75; (2003) 216 CLR 53; 203 ALR 217; Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; Kirby J dissenting
[21] [2003] HCA 75; (2003) 216 CLR 53; 203 ALR 217 at [89]-[90]; 91; 245
General principles relating to parties’ requests that consent orders be made
A.In proceedings unrelated to merits review
This issue arose very recently in the case of Bradken Limited v Norcast S.ár.L[22] (Bradken) when the Full Court of the Federal Court decided that it was not prepared to make orders by consent allowing an appeal from Gordon J, who had heard the matter at first instance. The essence of its declining to do so is set out in the following paragraphs from the judgment:
“ The essential reasons why we decided not to make the orders sought stem from an existing decision of a Full Court of this Court referred to later. The principle is that the exercise of the power to allow an appeal by consent is dependent upon the identification, to the satisfaction of the Court, of arguable appellable error in the decision below. The Court’s satisfaction as to what amounts to arguable error depends upon the nature and complexity of the proceeding and the nature of the error that is identified.
Here, the proceeding was of considerable complexity and public importance. The primary judge made detailed factual findings and determined novel and complex questions of law, in a comprehensive and careful judgment. We were not satisfied to the extent necessary to warrant the exercise of appellate jurisdiction that arguable error was revealed without considering the merits of the appeal. What was identified was a series of arguments which may or may not have succeeded on a full hearing rather than error in the sense stated in the relevant authorities.
That is not to say that the parties to commercial litigation cannot resolve, by consent, an appeal using Rules of Court to which we refer later. So much is plain from the fact that the parties in the present case did so within a few days of the hearing of 30 October 2013.”[23]
[22] [2013] FCAFC 123; Allsop CJ, Mansfield and Jacobson JJ
[23] [2013] FCAFC 123 at [2]-[4]
There was no question that the Full Court had power to make the order that it had been asked to make for s 25(2B) of the Federal Court of Australia Act 1976 (FCA Act) provides:
“A single Judge or a Full Court may:
(a)-(aa)…
(b)make an order by consent disposing of an appeal to the Court (including an order for costs);
(ba)-(c) …”[24]
[24] Section 25 of the FCA Act is concerned with the exercise of the Federal Court’s appellate jurisdiction. Therefore, I note that s 25(2B)(b) would not give it power to make an order by consent in an appeal lodged under s 44 of the AAT Act from a decision of the Tribunal for such an appeal is heard in the Court’s original, and not appellate jurisdiction: FCA Act; s 19(2).
Having examined the previous authorities and heard submissions from the parties as well as the Australian Competition and Consumer Commission, which had intervened, the Full Court concluded that it was not satisfied that there was an operative error in the primary judge’s reasons. That was not to say that the grounds of appeal were not arguable but it was to say that substantial matters to the contrary had been put in submissions made on behalf of the respondents. Their Honours continued:
“… Without a concession from responsible counsel for the respondent as to the existence of error, in a case of such complexity, with a long and careful judgment of the primary judge, the Court was not satisfied, to any real degree of satisfaction on the submissions, of the existence of error.
The process … is not a formality. If the Court had been prepared to make the orders, the parties would have been entitled to tell the world that on a short application and without adjudication of the merits, the Full Court was satisfied of error in the primary judge’s reasons: cf VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291 at [23]. We are not so satisfied.
As was pointed out, both in argument on the hearing of this application, and earlier in these reasons, there was another means by which the parties could have procured the outcome which they sought, but without seeking the imprimatur of the Full Court (in the sense explained in Telstra) about the existence of appellable error and without the implicit consequence that the error or errors were pervasive across the grounds of appeal. That means was the use of Rules 39.05(f) and 39.11. As noted, the parties have now adopted that course. It should not be thought that Telstra provides any impediment whatsoever for the settlement of appeals in the Court.”[25]
[25] [2013] FCAFC 123 at [36]-[38] I note that the case of VTAG v Minister for Immigration and Multicultural and Indigenous Affairs, to which reference is made is a judgment of a Full Court of the Federal Court to the effect that, in certain circumstances, it could, on appeal, set aside an Order made by consent by a single Judge dismissing an application for review of a decision of the RRT. It did so under the incidental power conferred by s 5(2) of the FCA Act: [2005] FCAFC 91; (2005) 141 FCR 291; Heerey, Finkelstein and Lander JJ.
B. In proceedings related to merits review where the parties consent to an order
The issue of consent arose in the Federal Court in Vietnam Veterans’ Association of Australia (NSW Branch) Inc v Specialist Medical Review Council and Another[26] when parties agreed that declarations made by the Specialist Medical Review Council should be set aside but each did so for different reasons. The parties did not propose that Moore J made the orders by consent. Therefore, his Honour said:
“… it is necessary to determine the association’s application. I should add that had such orders been proposed it may have raised the issue of whether the court could make them without being satisfied that the council had erred. There is now a line of authority that in judicial review proceedings, agreement between the parties that the decision-maker erred should not be reflected in orders made by consent unless the court is also satisfied that there is such an error: see Kovalev v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 323; 59 ALD 71; Xiao v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 129; 65 ALD 479; Yulianti v Minister for Immigration and Multicultural Affairs (2001) AAR 142 [sic [2001] FCA 142] and Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 1674; BC2001107440, but cf Alhila v Minister for Immigration and Multicultural Affairs [2001] FCA 1759; BC2001107745. …”[27]
[26] [2002] FCA 733; (2002) 69 ALD 553
[27] [2002] FCA 733; (2002) 69 ALD 553 at [2]; 555
In Alhila v Minister for Immigration and Multicultural Affairs,[28] Lee J referred to Xiao v Minister for Immigration and Multicultural Affairs (Xiao)[29] and Yulianti v Minister for Immigration and Multicultural Affairs (Yulianti)[30] to support the proposition that it is not necessary to recite a particular ground of review in the order as a pre-condition for making an order by consent. His Honour went on to say:
“… Similarly, it is not necessary that the court explain why a consent order has been made if it is apparent that the Court has jurisdiction in the matter and that the proposed order is within the power of the Court. It is sufficient that the Court be satisfied that it is appropriate that the order be made as requested by the parties. (Cf: Khan v Minister for Immigration & Multicultural Affairs [2001] FCA 1674).”[31]
[28] [2001] FCA 1759
[29] [2001] FCA 459; Affairs (2001) 109 FCR 129; 65 ALD 479
[30] [2001] FCA 142
[31] [2001] FCA 1759 at [8]
If his Honour is relying on the cases of Xiao and Yulianti to support his further proposition, and I do not think that he is, I respectfully suggest that they do not support it. If he is relying on the case of Khan v Minister for Immigration & Multicultural Affairs (Khan), I respectfully suggest that it does not support that further proposition. Rather, it is supporting the proposition that the Court must identify the error of law made by the decision-maker whose decision is being reviewed and identify that error in some way. In giving judgment in Khan, O’Loughlin J identified three ways in which it may be identified: in the Court’s Order; as an attachment to it; or in reasons given by the Court.[32]
[32] [2001] FCA 1674 at [4]
To put the matter in context, Khan was a case in which Mr Khan’s application for a protection visa had been rejected by both the Minister for Immigration and Multicultural Affairs (Minister) and the Refugee Review Tribunal (RRT). When Mr Khan sought review of the RRT’s decision in the Federal Court, the Minister lodged submissions in support of the decision. Shortly before the dated schedule for the hearing of the application, the parties lodged a document signed on behalf of each of them and entitled “Consent Order” reading:
“The Court orders that:
1.The Refugee Review Tribunal decision No. 1/39659 dated 30 August 2001 be set aside.
2.The matter be remitted to the Refugee Review Tribunal differently constituted for reconsideration.
3.The Respondent pay the applicant’s costs to be taxed or agreed.”[33]
The document was lodged under cover of a letter written by the Minister’s solicitor in the matter. It read in part:
“The reasons for the Minister agreeing to remit [the] matter to the RRT for reconsideration arises from the findings of the RRT at page 25 of the RRT decision in relation to the issue of failed asylum seekers returning to Afghanistan from a foreign western country. The findings made by the RRT may be an error of law in that it may be an incorrect application of the law to the facts pursuant to section 476(1)(e) of the Migration Act 1958 – see W124 v Minister for Immigration and Multicultural Affairs [2001] FCA 1387.”[34]
[33] [2001] FCA 1674 at [1]
[34] [2001] FCA 1674 at [3]
O’Loughlin J said of the course proposed by the parties:
“ In my opinion the course that has been adopted by the Minister and his advisers is inappropriate. If the Court were to endorse its approval to the terms of the ‘Consent Order’, neither the member of the Tribunal who would hear the matter anew nor the member whose decision was set-aside would be informed of the Court’s reasons. The terms of the consent order do not disclose any reasons and the letter from the Minister's solicitor was addressed to my associate - not to the Tribunal. When I drew these matters to the attention of counsel, I was informed that on the fresh hearing before the Tribunal, the Minister's advocate would inform the Tribunal of the error in the first Tribunal's reasons. That is not a sufficient, nor, indeed an appropriate answer. It is not sufficient because any statement that may be made by the Minister's advocate could only be persuasive at the best - it could not be authoritative. The identification of an error in the reasons of the Tribunal can only come, authoritatively, from a decision of this Court. Furthermore, counsel's answer was not appropriate because it overlooks the fact that it is the Court - as distinct from the parties - which must be satisfied that there has been a reviewable error in the reasons of the Tribunal. This issue was addressed earlier this year in some detail by Stone J in Yulanti v Minister for Immigration and Multicultural Affairs [2001] FCA 142. It was also discussed by French J in Kovalev v Minister for Immigration and Multicultural Affairs [2000] FCR 323 where his Honour said that he would not accept a ‘Consent Order’ unless the error of law was specified in the proposed order. Nothing that his Honour said should be taken as meaning that his proposition was the only available course of action. Another proposition would have the Minister prepare a memorandum in which the error was identified. If the Court was satisfied that the memorandum accurately reflected the position, it could be attached to and form part of the order of the Court.
Another proposition is for the Court to receive the benefit of submissions from the parties and, if so convinced, present its reasons for setting aside the decision of the Tribunal. That is the course that I have adopted in this particular case.”[35]
[35] [2001] FCA 1674 at [4]-[5]
He then went on to give his reasons for concluding that the RRT had made an error of law and made an Order in the terms put to him by the parties. It is clear from the passage that I have set out, though, that O’Loughlin J was anxious that the RRT be informed of his reasons. He recognised that it was important that the member constituting the RRT understood where the error had been made as well as the member who would constitute it on the rehearing. In both instances, the members needed to have that knowledge in order to avoid the same error in future cases. This is essential in matters decided by administrative decision-makers for, while each individual decision affects the individual whom it concerns, each individual decision is but one of many made under a particular enactment. When viewed against all the other individual decisions, each individual decision should be able to take its place in the pattern that is formed by all of them. The canvas upon which the pattern is formed is made up of the enactment and any general law that may apply. The pattern woven on that canvas by the individual decisions is determined by the particular factual circumstances applying to each. Each must be consistent with the enactment and any applicable general law for it is the law that provides the foundation for their having been made and for the ultimate consistency of the pattern that is woven upon the canvas by those individual decisions.
I have spoken of administrative decisions made under a particular enactment but the issue is wider than this. Administrative decisions under particular enactments are not made in isolation from each other. Administrative decisions made under one enactment may have an influence on those made under another or others. An example is found in the interaction among the National Vocational Education and Training Regulator Act 2011, the Education Services for Overseas Students Act 2000 and the Migration Act 1958. Principles developed in relation to a particular administrative decision may have application across a far wider range of decisions. An example is provided in the principles developed by the majority of the Full Court in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd[36] (Brian Lawlor). They were developed in the context of a customs decision and have been applied across a large number of other contexts.
[36] [1979] FCA 21; (1979) 24 ALR 307; Bowen CJ, Smithers and Deane JJ
Issues of this sort confronted the Full Court of the Federal Court in Irwin v Military Rehabilitation and Compensation Commission[37] in considering a case in which the parties had agreed both that the Tribunal’s decision should be set aside and why it should be set aside. The Court noted that it was prepared to set the decision aside but proposed to give its own reasons. In essence, it did so because it reached the view that the question whether the Tribunal had erred in law was a decision that it had to make for itself. The passage that took it to that conclusion is important:
[37] [2009] FCAFC 33; (2009) 174 FCR 574; 107 ALD 503; Downes, Greenwood and Tracey JJ
“ What is before the court is a challenge to a decision of the Tribunal which is an administrative decision. It represents an exercise of the executive power of the Commonwealth. It is not simply an order resolving a dispute between litigants. An exercise of judicial power to set aside an exercise of executive power cannot depend upon consent where, as with applications to the Tribunal, the Parliament has conferred executive power relating to the decision, including the power to remake it, on the Tribunal. In Kovalev ([(1999) 100 FCR 323] at 324) French J said this:
‘It is important therefore that the Court itself addresses and is satisfied of the basis upon which its order is to be made and in particular where the order sets aside the decision of an official decision-maker or a tribunal.’
In Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 42 ALR 209 at 221 Sheppard J, in a passage subsequently approved by the High Court in Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9; (2000) 199 CLR 343 at 356, 357, identified the task involved in the exercise of judicial power on appeal from the Tribunal as follows:
‘The error of law alleged has to be isolated out, a decision made on this question of law, and such order made and directions given as are appropriate only to the decision of this question of law... .’
To use the words of French J in Kovalev (at 326) there will be ‘a purported, but not an actual exercise of judicial power’ if a court acts upon an asserted error of law or even a prima facie error of law, even where the parties are agreed, without satisfying the requirements set out by French and Sheppard JJ.
It is accordingly necessary for this court, where the question whether the Tribunal has erred in law is before it, to address the matter for itself. That is not to say that the court may not deal with the matter more briefly in its reasons than it otherwise would, or that it may not specifically state that there has been no real contradictor, so that courts subsequently considering the decision may take that into account.
The matter before us is important. It will affect every application to the Tribunal for review of a decision by the Commission to decline liability. We accordingly propose to give reasons.”[38]
[38] [2009] FCAFC 33; (2009) 174 FCR 574; 107 ALD 253 at [13]-[16]; 577-578; 256-257
The dilemma caused by the Declaration
As I have said, there is no question that I am bound by the Declaration made by Gordon J. Equally, I would not contemplate doing anything other than abide by it. The problem that arises for me is that, as I understand the Declaration, it does not identify the error of law that I have made. All that it tells me is the decision that I should have made in relation to the Tribunal’s power to review the Commissioner’s objection decision in so far as it related to review of the assessments rather than to the assessments of penalty. Even if I made an error of law in finding that Mr and Mrs Walters had made valid objections, the Declaration does not tell me why I made an error of law in applying the principles of Brian Lawlor to find that the Tribunal had power to review the objection decision that the Commissioner had made in fact.
It might be said that I do not need to know what error I made for the purposes of continuing to consider the issues that remain and nor does any other member of the Tribunal who might hear those issues. I would agree but my not knowing the error of law has much wider ramifications than the progress of Mr and Mrs Walters’ applications.
As the Declaration does not tell me what error of law I made in that regard, I do not know how I am going to reconcile its underlying assumptions with authorities, to which I referred in my reasons, if the same issue arises. Uninstructed by any reasons in this matter, those other authorities appear to my mind to support the application of the principles set out in the Brian Lawlor case to review of the Commissioner’s objection decisions when invalidly made. I take the case of Kennedy v Administrative Appeals Tribunal[39] (Kennedy) as an example. How do I reconcile the statement inherent in the Declaration that, to adapt the words of the Full Court in Bradken, “… on a short application and without any adjudication on the merits, … [a single Judge and without a contradictor] was satisfied of error in the … reasons …” I gave for the proposition that the principles in Brian Lawlor did apply, with the conclusion of the Full Court in Kennedy that they do have application. The relevant passage from Kennedy is:
“ Mr Kennedy’s challenge in the Tribunal to the validity of the Commissioner’s assessments, based on the contentions that they were made in bad faith or the Commissioner’s view as to fraud and evasion was incorrect, must fail. The Tribunal has jurisdiction to hear and determine the present review under Part IVC of the TAA because each assessment purports to have been made in exercise of powers conferred by that enactment. Whether or not the assessments were, as a matter of law, validly made does not attenuate this finding. There is a long line of authorities which supports this proposition, starting with Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307. More recently, in Minister for Immigration v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314 at 323, the Full Federal Court observed that the judgment as to the validity of a Minister’s actions is for the courts, not for an administrative body such as a Tribunal: see also Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344.”[40]
[39] [2008] FCAFC 124; (2008) 168 FCR 566; 249 ALR 87; 103 ALD 238; [2008] ATC 20-037; 73 ATR 276; 48 AAR 500; French, Tamberlin and Mansfield JJ
[40] [2008] FCAFC 124; (2008) 168 FCR 566; 249 ALR 87; 103 ALD 238; [2008] ATC 20-037; 73 ATR 276; 48 AAR 500 at [22]; 573; 94; 245; 8; 478; 282-283; 507. This case only a month or so before the High Court decided Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; (2008) 237 CLR 146; 247 ALR 605; 69 ATR 41; 82 ALJR 1177; [2008] ATC 20-039; Gummow, Kirby, Hayne, Heydon and Crennan JJ. That case was concerned with the validity of an assessment and not with that of an objection decision. It does not touch on the principles expressed in cases such as Kennedy.
I have raised these issues because they are not unique to this Declaration or this matter. They arise reasonably regularly and take various forms whether in the context of judicial review or on appeal. Regard need only be had to the reasons for decision given by Senior Member Fice in Re Zhang and Minister for Immigration and Citizenship[41] (Zhang) to illustrate the struggle. With the consent of the parties, Riethmuller FM, as he then was, had set aside Senior Member Fice’s decision and remitted the matter “… for reconsideration according to law.” A note followed the Order and stated:
“AND THE COURT NOTES THAT:
A.The first respondent [the Minister] concedes that the decision of the second respondent is affected by a jurisdictional error on the basis that:
(i)The second respondent [the Tribunal] failed to consider events which occurred after the delegate’s decision of 19 April 2010 because it incorrectly found that there is a temporal limitation to s. 134 of the Migration Act 1958 (Cth). In this regard, the first respondent relies on the decision of Shi v Migration Agents Registration Authority [2008] HCA 31;
(ii)The second respondent misinterpreted and misconstrued the circumstances in which the power to cancel a visa is enlivened under s. 134 of the Migration Act 1958 (Cth); and
(iii)The second respondent misinterpreted and misconstrued the test in s. 134 of the Migration Act 1958 (Cth) and incorrectly placed the onus of proof on the applicant to satisfy the Minister that the applicant had obtained a substantial ownership in an eligible business or was utilising his skills in actively participating in the day to day management of the business (or was making a genuine effort in relation to those activities). In this regard, the first respondent relies on Weng v Minister for Immigration and Citizenship (No 2) [2011] FCA 444.”
[41] [2012] AATA 475; (2012) 129 ALD 646
The Note does not reflect any reasons for the Minister’s making the concessions. There is nothing in the Federal Magistrate’s Order to suggest that he adopted the concessions. Furthermore, he too did not give any reasons for accepting the concessions and making the Order.
The reasons for decision given by Senior Member Fice in Zhang illustrate the difficulties he found in trying to understand how he had made a jurisdictional error of the sort found to have been made in Weng v Minister for Immigration and Citizenship when the reasons for decision he had given in his first reasons had squarely addressed the point upon which he was later said to have erred. At the hearing, the parties had difficulty in explaining where they thought he had erred.[42] For all practical purposes, he was left to guess where he had been said to have erred but pointed out where he had, consistently with the judgment in Weng v Minister for Immigration and Citizenship, dealt with the matter.
[42] [2012] AATA 475; (2012) 129 ALD 646 at [28]; 653
As to the concession made by the Minister on the basis of the High Court’s judgment in Shi v Migration Agents Registration Authority,[43] Senior Member Fice observed that the principles it established were not without their limitations. Those limitations were to be found in the enactment under consideration. In the case of a decision involving s 134 of the Migration Act 1958, temporal limitations were expressly imposed by Subdivision G of Division 3 of Part 2 of that legislation.
[43] [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147; Kirby, Hayne, Heydon, Crennan and Kiefel JJ
Given the fact that he was bound by the remittal, Senior Member Fice simply reheard the matter without revisiting the findings of fact he had made in his first decision and making further findings on fresh evidence given at the hearing on remittal.
DECISION
For these reasons, I have decided that:
(1)the effect of the Declaration made by the Federal Court on 17 October 2013 in proceeding No. VID285/2013 is that:
(a)the part of my decision relating to the Tribunal’s power to review the respondent’s objection decisions in so far as they relate to the assessment of income tax is to be treated as not having been made; and
(b) in place of that
(i)in proceedings No. 2012/4900, I substitute a decision:
(I) to set aside that part of the objection decision; and
(II)to substitute a decision that the Tribunal has no power to review that part of the objection decision made by the Commissioner in relation to the C Walters income tax assessment; and
(ii)in proceedings No. 2012/4902, the Tribunal substitutes a decision:
(I)to set aside that part of the objection decision; and
(II)to substitute a decision that the Tribunal has no power to review that part of the objection decision made by the Commissioner in relation to the K Walters income tax assessment; and
(2)Both proceedings are adjourned until the applicants lodge further applications for review of the respondent’s objection decisions relating to the assessments of income tax in relation to each applicant
I certify that the forty eight preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ……(sgd)......................................................
Leah Berardi Associate
Date of Directions Hearing 19 November 2013
Date of Decision 22 November 2013
Solicitor for the Applicants Mr H Enslin
Enslin and Associates
Solicitor for the Respondent Ms L Saltnes
ATO Dispute Resolution
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