Accountants First Limited v Commissioner of Inland Revenue
[2014] NZHC 2446
•6 October 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2014-485-002547 [2014] NZHC 2446
UNDER the Judicature Amendment Act 1972 and
the High Court Rules
IN THE MATTER
of an application for judicial review of a decision made under section 34B(8) of the Tax Administration Act 1994
BETWEEN
ACCOUNTANTS FIRST LIMITED Applicant
AND
THE COMMISSIONER OF INLAND REVENUE
Respondent
Hearing: 1 October 2014 Counsel:
D P Weaver for Applicant
H W Ebersohn and K E Saint for RespondentJudgment:
6 October 2014
JUDGMENT OF COLLINS J
Introduction
[1] I am dismissing Accountants First Ltd’s (Accountants First) application for judicial review of a decision of the Commissioner of Inland Revenue (the Commissioner) in which she decided to remove Accountants First from her list of approved tax agents.
[2] I am satisfied that in making her decision the Commissioner complied with the principles of natural justice and the relevant provisions of the Tax Administration Act 1994 (the TAA). In particular, the Commissioner complied with her obligations
to:
ACCOUNTANTS FIRST LIMITED v THE COMMISSIONER OF INLAND REVENUE [2014] NZHC 2446 [6
October 2014]
(1) inform Accountants First of the reasons why she was considering
revoking Accountants First’s status as an approved tax agent; and
(2)provide Accountants First with an opportunity to make submissions before deciding to remove its name from the list of approved tax agents.
[3] In this judgment I shall:
(1) Set out the background.
(2) Explain the grounds for judicial review advanced by Accountants
First.
(3) Set out the relevant legislation.
(4) Explain why Accountants First’s claim that the Commissioner did not
give reasons for her proposed decision must be dismissed.
(5) Explain why Accountants First’s claim it was not consulted must also
be dismissed.
(6) Summarise my conclusions.
Background
[4] Accountants First was incorporated on 3 October 2005. Its sole director is Mr Kamal. He, his wife and the Imran Kamal Trustee Company Ltd are the shareholders of Accountants First.
[5] Soon after it was incorporated Accountants First was granted the status of being an approved tax agent by the Commissioner. This appointment was made under s 34B(4) and (5) of the TAA. I explain these provisions in paragraphs [40] to [44].
[6] Accountants First developed to the point where it now employs eight to 10 staff and provides services to approximately 1,100 clients.
[7] In February 2011 the Commissioner commenced an investigation into the tax affairs of Accountants First and Mr Kamal. Those investigations revealed that, between March and July 2006, Accountants First made seven payments to a company controlled by a Mr Anderson. The payments were supposedly made for information technology services. However, those services were never provided. When the tax invoices were paid, 91.5 per cent of the invoiced sum was deposited into Mr Kamal’s Vanuatu bank account by Mr Anderson.
[8] Between 2 May 2006 and 31 March 2008 Accountants First claimed input tax credits in respect of the fictitious tax invoices for three GST periods. This resulted in Accountants First evading tax amounting to $55,735.50.
[9] Mr Anderson and his partner Mr Gilchrist obtained a fee (being the 8.5 per
cent of the funds that were withheld from Mr Kamal’s Vanuatu bank account).
[10] In December 2011 Mr Kamal decided to make a voluntary disclosure to the Department of Inland Revenue (the Department). He also arranged to repay the tax in issue together with interest and a penalty.
[11] Mr Anderson and Mr Gilchrist were prosecuted and convicted on 26 July
2013 for their roles in tax avoidance schemes, including the schemes involving Accountants First and Mr Kamal.1 Mr Kamal gave evidence against Mr Anderson and Mr Gilchrist.
[12] Mr Kamal had been charged on 14 August 2012 with seven offences of being a party to using a document to obtain a pecuniary advantage2 for his role in the fictitious invoice scheme.
[13] Prior to him giving evidence against Mr Gilchrist and Mr Anderson the charges against Mr Kamal were reduced to six charges of tax evasion under the
1 R v Gilchrist [2013] NZHC 1868, (2013) 26 NZTC 21-025.
2 Crimes Act 1961, ss 228(b) and 66.
TAA.3 Six charges were also laid against Accountants First under the same provisions of the TAA. Mr Kamal pleaded guilty to the charges against him on
18 December 2012. He was sentenced to three months’ home detention and
150 hours community work on 15 February 2013.4 On the same day Accountants First was convicted and discharged in relation to the six charges that had been laid against it under the TAA.
[14] When sentencing Mr Kamal Judge Barry observed:5
At the cold, hard kernel of this offending is the fact that he agreed that invoices for services that were never rendered would be passed to the Commissioner and the reason for doing that was to derive a financial benefit from evading legitimate tax payments.
[15] Mr Kamal sought name suppression in the District Court because of concerns about Mrs Kamal’s health. His application for name suppression was dismissed by Judge Barry.6 Mr Kamal successfully appealed that decision to the High Court.7
However, on 19 December 2013 the High Court revoked name suppression because the evidence upon which Mr Kamal founded his appeal in relation to name suppression proved to be very questionable. This is because the affidavit filed by Mr Kamal in support of name suppression said that on 25 July 2013 Mrs Kamal had been taken by ambulance to hospital following an overdose of sleeping pills. However, inquiries revealed that there was no record of Mrs Kamal having been taken to the hospital on the day in question. Mr Kamal then explained he took his wife to the hospital, they sat in the waiting room and they left without seeing anyone. In revoking name suppression for Mr Kamal, Williams J said Mr Kamal’s
explanation “lack[ed] credibility”.8
[16] Following the conclusion of the prosecution against Accountants First and
Mr Kamal, officers of the Department commenced a process to determine if
Accountants First’s tax agent status should be revoked.
3 Tax Administration Act 1994, ss 149B, 150, 150A and 150C.
4 Inland Revenue Department v Kamal DC Wellington CRI-2012-085-8280, 15 February 2013.
5 At [27].
6 R v Kamal DC Wellington CRI-2012-085-8280, 24 July 2013.
7 K v Inland Revenue Department [2013] NZHC 2426, (2013) 26 NZTC 21-034.
8 Inland Revenue Department v Kamal [2013] NZHC 3474 at [12].
[17] The process involved two decisions.
First decision
[18] On 13 May 2013 letters were sent by the Department to Accountants First’s shareholders advising that their company’s tax agent status was being reviewed and the reasons why those steps were being considered. The Department explained that Accountants First’s tax status was being reviewed because of Mr Kamal’s convictions and because it was incumbent on the Commissioner to protect the integrity of the tax system. The Department sought a response within 30 days.
[19] On 10 June 2013 the Department received a very detailed eight-page submission from Accountants First’s then barrister, Mr Coleman, explaining why the company’s tax agent status should not be revoked.
[20] In summary, Mr Coleman submitted on behalf of Accountants First:
(1)Mr Kamal had accepted that he did wrong, was remorseful, had served his sentence and was unlikely to offend again.
(2)There were no issues about the way Accountants First had discharged its role on behalf of its clients.
(3)Mr Kamal and Accountants First’s employees would lose their livelihoods if Accountants First was to be removed from the list of the Commissioner’s approved tax agents.
(4) Other tax agents had been convicted of tax offences and were retained
on the Commissioner’s list of approved tax agents.
(5)It was Mr Kamal and not Accountants First that had offended and that if Mr Kamal was replaced as tax manager at Accountants First then the company should be permitted to retain its tax agent status.
[21] A meeting was held on 8 August 2013 between officers of the Department, Mr Kamal and Mr Coleman. The minutes of that meeting are comprehensive and record that Mr Coleman again advanced the proposal that Accountants First retain its position as an approved tax agent if Mr Kamal were to be replaced as the tax manager of the company.
[22] On 27 September 2013 the Department sent letters to Accountants First’s shareholders advising that a decision had been made to remove the company from the list of approved tax agents.
[23] At the time this decision was made it was thought that the officer of the Department who made the first decision had delegated authority from the Commissioner to make this decision under s 7 of the TAA.
[24] On 18 October 2013 Accountants First filed judicial review proceedings and an application for interim relief. That application for judicial review claimed that the Commissioner’s decision was unreasonable and/or failed to take into account relevant considerations and/or took into account irrelevant considerations.
Second decision
[25] In December 2013 officers of the Department realised the person who had made the decision to revoke Accountants First’s tax agency status did not have delegated authority from the Commissioner to make that decision.
[26] On 20 December 2013 Crown Law wrote to Accountants First’s new barrister, Mr Weaver, explaining that the officer in the Department who had made the first decision to remove Accountants First from the list of approved tax agents did not have the authority to make that decision and therefore, the decision communicated on 27 September 2013 was “not valid and should be revoked”. Crown Law explained that a new decision-maker, with the appropriate delegated authority, would consider whether Accountants First should be removed from the list of approved tax agents “on the basis that Mr Kamal, director of [Accountants First], holds convictions for six criminal offences”. Crown Law explained to Mr Weaver that a new decision would be expected by 31 January 2014.
[27] Matters were then referred to Ms Young, a senior officer of the Department who was authorised by the Commissioner to remove tax agents from the Commissioner’s list of approved tax agents.
[28] Ms Young has sworn an affidavit in this proceeding in which she explains that she read and carefully considered all matters on file, including:
(1) the letter from Mr Coleman dated 10 June 2013; and
(2) the minutes of the meeting of 8 August 2013 which Mr Kamal and Mr
Coleman attended.
[29] In her affidavit Ms Young explains that she:9
… gave particular consideration to the detailed submissions made by [Mr] Coleman on behalf of the three shareholders of [Accountants First] which submitted that:
11.1 In all the circumstances of the case, [Accountants First’s] tax agency
should not be removed;
11.2 In the alternative, Mr Kamal would cease to be a tax manager of [Accountants First] and … [Mr Kamal] would not be involved with the return preparation and lodgement.
[30] On 19 February 2014 Ms Young decided to remove Accountants First from the list of approved tax agents. In her affidavit Ms Young explains that in reaching her decision she was aware of the statutory threshold to remove a tax agent from the Commissioner’s list of approved tax agents. Ms Young says that she reached her decision because:10
… continuing to list [Accountants First] as a tax agent would adversely affect the integrity of the tax system and, in particular, taxpayer perceptions of that integrity.
Ms Young explains she:11
… came to this view given the serious nature of the offending and the fact that Mr Kamal should have been aware of the potential consequences of his
9 Affidavit of E J Young, 13 May 2014 at [11].
10 At [19].
11 At [19].
actions given the stringent application process tax agents are required to undertake as part of the registration process.
[31] Annexed to Ms Young’s affidavit is a memorandum she made on 19 February
2014 which explains the reasons for her decision. Ms Young summarised the reasons for her decision in the following way:
…
· The behaviours and actions of Mr Kamal, who is the sole director of [Accountants First], that led to his conviction included providing [the Department] with false information and tax returns and falsifying incomes in order to evade the amount and payment of tax.
· As a result of these actions, Mr Kamal has been convicted of aiding and
abetting Accountants First … in respect of this tax evasion.
· It is the combination of the behaviours and actions of Mr Kamal, along with the convictions of both Mr Kamal and [Accountants First], that would lead me to conclude to continuing to list [Accountants First] as a tax agent would adversely affect the integrity of the tax system.
[32] One page of Ms Young’s memorandum of 19 February 2014 contains a very detailed consideration of the submissions made by Mr Coleman on behalf of Accountants First. In her memorandum Ms Young noted:
(1)Mr Coleman had submitted that the decision-maker needed to look beyond the conviction and assess the underlying conduct.
(2)Mr Coleman had submitted that Mr Kamal and Accountants First’s conduct did not impact on the integrity of the tax system because the offending was historical. Ms Young records her disagreement with that submission and her view that the offending, namely falsifying invoices and tax returns in order to avoid paying tax did undermine the integrity of the tax system, and that when this offending is by a director of a tax agent, “the adverse impact on the integrity of the tax system is even greater”.
(3)Mr Kamal’s subsequent actions and acknowledgement of his wrongdoing “were sensible and welcome”, but did not outweigh the gravity of the actual offending.
(4)The suggestion Mr Kamal had been influenced by Mr Gilchrist did not impress Ms Young, who rhetorically asked in her memorandum, “what happens next time someone ‘suggests’ to Mr Kamal that he act outside the law?”
(5)The intertwined nature of the convictions of Mr Kamal and Accountants First did not lead to an easy separation of Mr Kamal from Accountants First and, in any event, the proposed separation would not satisfy the requirement to list only tax agents “whose behaviour and actions do not undermine the integrity of the tax system”.
[33] In her memorandum dated 14 November 2014 Ms Young also recorded:
Furthermore, name suppression for Mr Kamal has recently been lifted (in January 2014) and publicity in respect of this case is very likely to further undermine the integrity of the tax system were [Accountants First’s] tax agent status to remain in place.
[34] On the same day letters were sent by the Department to the shareholders of Accountants First advising them that a decision had been made about Accountants First’s tax agent status and that the decision and the reasons for the decision would be explained in a further letter that would be sent on 27 February 2014.
[35] On 27 February 2014 Accountants First filed an application in this Court for urgent interim orders. On 5 March 2014 orders were made by consent. The effect of those orders was that the Department would take no further steps pending resolution of Accountant First’s application for judicial review.
[36] Also on 5 March 2014 Ms Young’s letter explaining the decision and the
reasons for her decision were sent to Mr Kamal via Mr Weaver.
[37] The letter sent on 5 March 2014 explains that Accountants First was being removed from the list of the Commissioner’s tax agents for the following two reasons:
(1)Mr Kamal was convicted of aiding and abetting Accountants First in providing false GST and income tax returns to the Commissioner “intending to evade the amount and payment of tax”; and
(2)Mr Kamal was convicted of aiding and abetting “Accountants First in providing misleading information to the Commissioner by way of altered tax invoices intending to evade the amount of payment of tax”.
Ms Young noted in her letter that Mr Kamal and Accountants First’s actions undermined the integrity of the tax system. Ms Young acknowledged the positive steps which Mr Kamal had taken since his wrongdoing came to light but explained Mr Kamal’s positive actions did not outweigh the gravity of the actual offending.
[38] Ms Young also made reference to paragraph [88] of the judgment of Simon France J concerning the conviction of Mr Gilchrist and Mr Anderson.12 In that paragraph, Simon France J, when referring to Mr Kamal said:
Is there a present incentive for him to lie? I was disappointed to learn at trial that there was still an outstanding issue, and was somewhat surprised his unsuitability as a tax agent is not obvious.
Grounds for judicial review
[39] Accountants First’s application for judicial review was filed on 20 March
2014. Accountants First pleads two breaches of s 34B(9) of the TAA. It says the
Commissioner (through her delegated officer):
(1)failed to provide reasons for the proposal to remove Accountants First from the register of approved tax agents; and
(2) failed to consult with Accountants First before reaching the second
decision to revoke Accountants First’s tax agency status.
12 R v Gilchrist, above n 1.
Relevant legislation
[40] The Commissioner’s authority to list and remove tax agents is set out in s 34B of the TAA. If an applicant satisfies the eligibility criteria for being a tax agent, and, if listing the person as a tax agent would not adversely affect the integrity of the tax system, then the Commissioner must place that person’s name on the list of approved tax agents.13
[41] The Commissioner can only remove a tax agent from the list of approved tax agents if she is satisfied that either the person is not eligible to be a tax agent, or, if continuing to list the person as a tax agent would adversely affect the integrity of the tax system.14
[42] The term “the integrity of the tax system” is defined in inclusive terms in s 6
of the TAA in the following way:
…
(2) Without limiting its meaning, the integrity of the tax system includes—
(a) Taxpayer perceptions of that integrity; and
(b) The rights of taxpayers to have their liability determined fairly, impartially, and according to law; and
(c) The rights of taxpayers to have their individual affairs kept confidential and treated with no greater or lesser favour than the tax affairs of other taxpayers; and
(d) The responsibilities of taxpayers to comply with the law; and
(e) The responsibilities of those administering the law to maintain the confidentiality of the affairs of taxpayers; and
(f) The responsibilities of those administering the law to do so fairly, impartially, and according to law.
13 Tax Administration Act 1994, s 34B(5).
14 The relevant portion of s 34B(8) of the TAA provides:
(8) The Commissioner may remove a person from the list of tax agents if the Commissioner is satisfied that–
…
(b) continuing to list the applicant as a tax agent would adversely affect the integrity of the tax system.
[43] Before the Commissioner through her delegated officers reaches any decisions about removing a tax agent from the list of tax agents, the Commissioner must consider any arguments against removal that are advanced by the tax agent. Generally the tax agent is given 30 days to make such submissions opposing revocation of their tax agent status. Section 34B(9) of the TAA provides:
(9) Before refusing to put a person on the list of tax agents, or removing a person from the list, the Commissioner must—
(a) give notice to the person of the Commissioner’s reasons for the proposed decision:
(b) consider any arguments against the proposed decision that are provided by the person within the period, beginning from the day of the notice,—
(i) of 30 days …
[44] If the Commissioner decides to remove the tax agent from the list of approved tax agents then he or she is removed from her list on the date of the Commissioner’s notice that informs the person concerned of the Commissioner’s decision to remove him or her from the list.15
Reasons for proposing to remove tax agent status
[45] Section 34B(9) of the TAA places a clear and unequivocal duty on the Commissioner to give a tax agent reasons for any proposed decision to remove the tax agent from the Commissioner’s list of approved tax agents.
[46] Mr Weaver accepted on behalf of Accountants First that on 13 May 2013 the Department provided the shareholders of Accountants First with notice under s 34B(9)(a) of the TAA of the reasons why the Commissioner was considering removing Accountants First from the list of approved tax agents. Those reasons concerned Mr Kamal’s convictions.
[47] Mr Weaver submitted that the Commissioner was obliged to again state her reasons for proposing to remove Accountants First from the list of approved tax
15 Tax Administration Act 1994, s 34B(10).
agents when the Department initiated the second decision to consider removing
Accountants First from the Commissioner’s list of approved tax agents.
[48] For the reasons I explain later in this judgment I am satisfied that the Commissioner complied with her obligations under s 34B(9) of the TAA when the Department explained on 13 May 2013 the grounds for considering removing Accountants First from the Commissioner’s list of approved tax agents and, when Accountants First was given the opportunity to make submissions, which it did, on
10 June and 8 August 2013.
[49] In any event Crown Law’s letter dated 20 December 2013 fulfilled the requirements of s 34B(9)(a) of the TAA. In that letter Crown Law clearly explains the reason why the Commissioner was considering removing Accountants First from the Commissioner’s list of approved tax agents was because of Mr Kamal’s convictions. Crown Law’s letter effectively replicated the reasons which the Department had given in its letter dated 13 May 2013 for considering removing Accountants First from the Commissioner’s list of approved tax agents.
[50] I am therefore satisfied that even if there was a legal obligation on the Commissioner to again state the reasons for considering removing Accountants First from the Commissioner’s list of approved tax agents, that obligation was complied with on 20 December 2013.
Consultation
[51] Section 34B(9) of the TAA also places a clear and unequivocal duty upon the Commissioner to consider arguments against the proposed decision that were advanced by the tax agent.
[52] The issue in this case is whether the Commissioner complied with her statutory obligation by only giving Accountants First the opportunity to be heard at the time the first decision was made to revoke Accountants First’s tax agent status. Expressed in an alternative way, did the Commissioner have a duty under s 34B(9) of the TAA to consult again with Accountants First when Ms Young made the second
decision to remove Accountants First from the list of the Commissioner’s approved
tax agents?
[53] This issue engages consideration of a decision-maker’s duty to re-consult.
[54] There have been various formulations of the duty to re-consult when circumstances have changed between the initial consultation and the basis upon which a decision is based. In Smith, R (on the application of) v East Kent Hospital NHS Trust16 it was suggested that the need for re-consultation occurred “if there was a fundamental difference” between a proposal consulted upon and the basis upon which the decision-maker made his or her decision.
[55] Fairness is at the heart of the issue. Those who have a right to be consulted must be given an adequate opportunity to express their views and to influence the decision-maker.17
[56] In some New Zealand decisions the scope of a decision-maker’s duty to re- consult echo the United Kingdom position to some extent.18 There can be no doubt a decision-maker must re-consult if, at the very least, the circumstances upon which a decision is made differ in a fundamental way from the circumstances that existed at the time of consultation. However some New Zealand decisions suggest the duty is engaged at a lower threshold. For example, in Air New Zealand Ltd v Nelson Airport
Ltd Miller J found that further consultation might have been required if advice contained in a report already in the decision-maker’s possession differed in a
“material[ly] adverse way”.19
16 Smith, R (on the application of) v East Kent Hospital NHS Trust [2002] EWHC 2640 (Admin) (QBD).
17 R v London Borough of Islington ex parte East [1996] ELR 74 at 88D.
18 See for example McInnes v Minister of Transport [2001] 3 NZLR 11 (CA) at [16] and Contact
Energy Ltd v Electricity Commission HC Wellington CIV-2005-485-624, 29 August 2005 at
[30]-[36].
19 Air New Zealand Ltd v Nelson Airport Ltd HC Nelson CIV-2007-442-584, 27 November 2008 at [50]. See also Leigh Fishermen’s Association Inc v Minister of Fisheries HC Wellington CP266/95, 11 June 1997 at 29 in which McGechan J considered further consultation was required for “a new matter, and not one on which the Minister safely could assume the Leigh fishermen would be unconcerned.”
[57] In my assessment the approach taken by Miller J best addresses the need to ensure fairness to those who are consulted and affected by an administrative decision. The duty to re-consult does not arise if only insignificant matters arise between the consultation and when the ultimate decision is made. I am of the view that the duty to re-consult arises if, at the time the decision is made, the information relied upon by the decision-maker has changed in a material way from the information which existed at the time of consultation.
[58] In determining whether there was a need for Ms Young to re-consult with Accountants First it is therefore necessary to identify the extent of any change between the first consultation and the factors which Ms Young relied upon. When asked to identify these factors Mr Weaver drew attention to the following two matters which he says were relied upon by Ms Young and which Accountants First were denied the opportunity to comment upon:
(1)that name suppression had been lifted in relation to Mr Kamal at the time Ms Young made her decision; and
(2) the reference to Mr Kamal in Simon France J’s judgment when he
convicted Mr Gilchrist and Mr Anderson.
[59] In my assessment, both matters identified by Mr Weaver are of no consequence:
(1)The fact Mr Kamal’s name was no longer suppressed at the time Ms Young made her decision was referred to briefly in her memorandum of 19 February 2014. It is impossible to see what could have been said about that matter that could have influenced Ms Young’s decision in favour of Accountants First. On the contrary, the fact Mr Kamal’s name was no longer suppressed was an ancillary factor that merely underscored the conclusion reached by Ms Young.
(2)In the letter sent to Accountants First on 5 March 2014 Ms Young referred and to paragraph [88] of the judgment of Simon France J of
26 July 2013 and quoted the extract from that judgment which I have set out in paragraph [38]. That was also a very peripheral matter which was known at the time the first decision was made to remove Accountants First from the list of approved tax agents.
[60] The decision to remove Accountants First from the Commissioner’s list of
approved tax agents was based on two key grounds, namely:
(1) Mr Kamal and Accountants First’s convictions for offences under the
TAA; and
(2)the belief that retaining Accountants First on the list of approved tax agents would undermine public confidence in the integrity of the tax system.
[61] These factors were identified in the Department’s letter to Accountants First
shareholders dated 13 May 2013 and Crown Law’s letter to Mr Weaver dated
20 December 2013 and were fully addressed in Mr Colman’s submissions on behalf of Accountants First which were made on 10 June and 8 August 2013. Ms Young’s decision to remove Accountants First from the Commissioner’s list of approved tax agents was based on the same factors which Accountants First addressed in its submissions. The other matters that were referred to by Ms Young when reaching her decision were ancillary matters of no consequence.
[62] The fact the first decision was invalid because the first decision-maker lacked the appropriate authorisation did not invalidate the steps taken under s 34B(9) before the first decision was made. Furthermore, there is no reason why the person charged with deciding whether or not to remove a tax agent from the Commissioner’s list of approved tax agents must also conduct a consultation required by s 34B(9)(b) of the Act provided:
(1)the tax agent is fully and fairly aware of the basis on which the decision-maker is considering removing him or her from the list of tax agents; and
(2)the decision-maker fully and fairly takes into account any submissions made by the tax agents before deciding whether or not to remove the tax agent from the Commissioner’s list of approved tax agents.
[63] This point reflects the realities of how administrative decisions have to be made in large organisations such as the Department. Every day issues are investigated and consulted upon at one level of the Department and then escalated up the organisation to senior officers who are delegated with responsibility to make decisions in the name of the Commissioner. The ability of the Department and the Commissioner to function would be seriously compromised if decision-makers were
also required to undertake investigations and consultations.20 A similar observation
was referred to in O’Reilly v Commissioners of the State Bank of Victoria,21 where
Gibbs CJ, after referring to Carltona Ltd v Commissioners of Works said:22
… [T]he functions of a Minister are so multifarious that the business of government could not be carried on if he were required to exercise all his powers personally. Ministers are not alone in this position … I can see no reason why, in construing sections of the Act which confer powers on the Commissioner, it should not be proper to consider the undoubted fact that the Commissioner could not possibly exercise all those powers personally.
[64] I am therefore satisfied the Commissioner complied with her obligation to consult with Accountants First when her delegated officer received and considered the submissions made on behalf of Accountants First on 10 June and 8 August 2013.
[65] As I have concluded that s 34B(9) of the TAA was complied with by the Commissioner in this case, I do not need to consider the submissions that were advanced in relation to whether or not I should exercise my discretion to grant relief.
Conclusion
[66] The application for judicial review is dismissed because the Commissioner fully complied with her obligations under s 34B(9) of the TAA.
20 007 Taxis Stratford Ltd v Stratford-on-Avon District Council [2010] EWHC Admin 1344 (QBD).
21 O’Reilly v Commissioners of the State Bank of Victoria (1982) 44 ALR 27 (HCA) at 30.
22 Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 (CA).
[67] The Commissioner is entitled to costs on a scale 2B basis.
D B Collins J
Solicitors:
Lyon O’Neale Arnold, Tauranga for Applicant
Crown Law Office, Wellington for Respondent
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